TITLE FIVE:

CRIMES RELATIVE TO OPIUM

AND OTHER PROHIBITED DRUGS

Articles 190-194 have been amended first by R.A. No. 6425 and then by R.A.
No. 9165 or the Comprehensive Dangerous Drugs Act of 2002.

COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

REPUBLIC ACT NO. 9165, JUNE 7, 2002 AS AMENDED BY REPUBLIC ACT NO.
10640

An Act Instituting the Comprehensive Dangerous Drugs Act of 2002, Repealing

Republic Act No. 6425, Otherwise Known as the Dangerous Drugs Act of 1972, as
Amended, Providing Funds Therefor, and for Other Purposes

To begin with, drugs and drug trafficking are some of the challenging societal problems
of modern day civilization because of the pernicious effects of drugs to our people especially to
the youth of our motherland.

Studies show that Methamphetamine misuse or addiction causes significant anxiety,

confusion, insomnia, mood disturbances, and violent behavior. In the Philippines, many
heinous crimes such as rape and murder and even robbery are committed with the use of illegal
drugs. As early as 2011, the Dangerous Drugs Board said that eighty percent (80%) of the
heinous crimes here in the Philippines are drug-related.

Even the Supreme Court recognized that our “problem on illegal drugs has reached
“epidemic,” “monstrous,” and “harrowing” proportions, and that its disastrously harmful
social, economic, and spiritual effects have broken the lives, shattered the hopes, and destroyed
the future of thousands especially our young citizens” (Estipona vs. Hon. Lobrigo, et al, G.R.
No. 226679, August 15, 2017).

This notwithstanding, law enforcers should strictly follow the law in arresting those
involved in illicit drug activities. The Supreme Court itself said that, “we admonish the police
officers to act with deliberate care and within the parameters set by the Constitution and the
law. To gloss over illegal arrests, searches and seizures in cases where law enforcers are able to
present the alleged evidence of the crime, regardless of the methods by which they were
obtained is trampling on the constitutionally guaranteed rights in the name of law enforcement
(People vs. Martinez, G.R. No. 191366, December 13, 2010). For ours is a government of laws
and not of men. We do not subscribe to the Machiavellian dictum “that the end justifies the
means.” It behoves upon us to strictly follow the law so that in the end we may become an
orderly and peaceful society.

WAYS TO CONFISCATE DRUGS

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 The four (4) methods recognized by law and jurisprudence to legally confiscate drugs
are: (1) through the implementation of a valid search warrant; (2) through valid warrantless
search; (3) through controlled delivery; and (4) through entrapment/ buy bust operation.

1. SEARCH WARRANT

One of our rights enshrined in the Constitution is the right against unreasonable
searches and seizures. This is provided in Section 2, Article III, Bill of Rights, which provides:

“Section 2. The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the persons
or things to be seized.”

A search warrant is an order in writing issued in the name of the People of the
Philippines signed by a judge and directed to a peace officer, commanding him to search for
personal property and bring it before the court.

A search warrant is obtained, not by the filing of a complaint or an information, but by

the filing of an application therefor. An application for a search warrant is a “special criminal
process,” rather than a criminal action. A search warrant is in the nature of a criminal process
akin to a writ of discovery. It is a special and peculiar remedy, drastic in its nature, and made
necessary because of a public necessity. (Worldwide Web Corporation vs. People and PLDT,
G.R. No. 161106, January 13, 2014)

There are two (2) requirements that must be satisfied before a judge can issue a search
warrant, viz: (1) probable cause and (2) particularity of the place to be searched and the things
to be seized.

In the issuance of a search warrant, probable cause requires “such facts and
circumstances that would lead a reasonably prudent man to believe that an offense has been
committed and the objects sought in connection with that offense are in the place to be
searched.” (Worldwide Web Corporation vs. People and PLDT, supra)

A description of a place to be searched is sufficient if the officer with the warrant can,
with reasonable effort, ascertain and identify the place intended and distinguish it from other
places in the community. Any designation or description known to the locality that points out
the place to the exclusion of all others, and on inquiry leads the officers unerringly to it,
satisfies the constitutional requirement (People vs. Posada, et al G.R. No. 196052, September
2, 2015; People vs. Policarpio, G.R. No. 227868, January 20, 2021). Thus, if the address stated
in the Search Warrant is merely “Purok 4, Malvar, Santiago City,” but the deponents in the
application for the search warrant were able to provide an outline of the location of
respondent’s house sufficient to distinguish it from other houses in Purok 4, Malvar Santiago

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City, the particularity requirement on the place to be searched is complied with. (People vs.
Policarpio, G.R. No. 227868, January 20, 2021)

A search warrant may be said to particularly describe the things to be seized when the
description therein is as specific as the circumstances will ordinarily allow; or when the
description expresses a conclusion of fact, not of law - by which the warrant officer may be
guided in making the search and seizure; or when the things described are limited to those
which bear direct relation to the offense for which the warrant is being issued. (People vs.
Policarpio, supra)

The things to be seized must be described with particularity. But technical precision of
description is not required. It is only necessary that there be reasonable particularity and
certainty as to the identity of the property to be searched for and seized. (Worldwide Web
Corporation vs. People and PLDT, G.R. No. 161106, January 13, 2014)

A search warrant describing the things to be seized as “narcotics paraphernalia” or

“quantity of loose heroin” or “any and all narcotics” and “all implements, paraphernalia,
articles, papers and records pertaining to” the use, possession, or sale of narcotics or dangerous
drugs” or “undetermined amount of marijuana” “or undetermined amount of shabu” is
compliant with the requirement of particularity. (People vs. Policarpio, G.R. No. 227868,
January 20, 2021 citing People v. Tee, G.R. Nos. 140546-47, January 20, 2003)

2. WARRANTLESS SEARCH

Due to necessity, exceptions to the rigid requirement for a search warrant issued by a
judge before a person may be searched has been laid down in several decisions of the Supreme
Court. The known jurisprudential instances of reasonable warrantless searches and seizures are:

i. Warrantless search incidental to a lawful arrest;

ii. Stop and frisk;
iii. Seizure of evidence in “plain view”;
iv. Search of a moving vehicle;
v. Consented warrantless search;
vi. Customs search; and
vii. Exigent and emergency circumstances.

I. WARRANTLESS SEARCH INCIDENTAL TO A LAWFUL ARREST

In warrantless search incidental to a lawful arrest, there must be first lawful arrest
before search may be conducted, the reverse process is not allowed. In case a warrant of arrest
issued by a judge is being served, there is no complication. It is in the case of warrantless arrest
that many legal problems had arisen as may be noted in the cases that will be discussed
hereunder.

Section 5, Rule 113 of the Revised Rules of Criminal Procedure provides that:

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 “Sec. 5. Arrest without warrant; when lawful. A peace officer or a private
person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the person to be
arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is temporarily
confined while his case is pending, or has escaped while being transferred from one
confinement to another.”

Paragraph (a) is what is known as arrest in flagrante delicto while paragraph (b) is
known as arrest in hot pursuit.

In arrest in flagrante delicto, two (2) elements must concur, namely: (a) the person to be
arrested must execute an overt act indicating that he has just committed, is actually committing,
or is attempting to commit a crime; and (b) such overt act is done in the presence or within the
view of the arresting officer.

In People vs. Aruta, G.R. No. 120915, April 3, 1998, the arrest of Aling Rosa Aruta who
was carrying a travelling bag but was pointed to by the informant as carrying marijuana was
declared illegal because carrying a bag is not an overt criminal act. Thus, the confiscated dried
marijuana leaves were not admitted in evidence and consequently, Aling Rosa was acquitted.

In People vs. Cogaed, G.R. No. 200334, July 30, 2014, Victor Cogaed was pointed as the
person carrying marijuana. Cogaed was arrested after he alighted from a jeepney. The Supreme
Court declared that Cogaed did not perform an overt criminal act. Cogaed was simply a
passenger carrying a bag and traveling aboard a jeepney. There was nothing suspicious,
moreover, criminal, about riding a jeepney or carrying a bag.

In Sanchez vs. People, 741 SCRA 294, November 19, 2014, accused Rizaldy Sanchez was
seen by the police operatives leaving the house of a known peddler of drugs. He was arrested
while he was on board a tricycle. The Supreme Court held that no overt physical act could be
properly attributed to Sanchez as to rouse suspicion in the minds of the police operatives that
he had just committed, was committing, or was about to commit a crime. Sanchez was merely
seen by the police operatives leaving the residence of a known drug peddler, and boarding a
tricycle that proceeded towards the direction of Kawit, Cavite. Such acts cannot in any way be
considered criminal acts. In fact, even if Sanchez had exhibited unusual or strange acts, or at
the very least appeared suspicious, the same would not have been considered overt acts in order
for the police officers to effect a lawful warrantless arrest under paragraph (a) of Section 5,
Rule 113.

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 In Miguel vs. People, G.R. No. 227038, July 31, 2017, accused was urinating while
standing in front of a gate enclosing an empty lot. Again the Supreme Court said that there was
no overt act constituting a crime committed by the accused in the presence or within the view
of the arresting officer.

II. STOP AND FRISK

The erudite Justice Leonen explained in several cases that a “stop and frisk” search is
“the act of a police officer to stop a citizen on the street, interrogate him, and pat him for
weapon(s) or contraband.” Thus, the allowable scope of a “stop and frisk” search is limited to a
“protective search of outer clothing for weapons.” Although a “stop and frisk” search is a
necessary law enforcement measure specifically directed towards crime prevention, there is a
need to safeguard the right of individuals against unreasonable searches and seizures. Law
enforcers do not have unbridled discretion in conducting “stop and frisk” searches. While
probable cause is not required, a “stop and frisk” search cannot be validated on the basis of a
suspicion or hunch. Law enforcers must have a genuine reason to believe, based on their
experience and the particular circumstances of each case, that criminal activity may be afoot.
Reliance on one (1) suspicious activity alone, or none at all, cannot produce a reasonable
search. In Manalili v. Court of Appeals, the police officers conducted surveillance operations
in Caloocan City Cemetery, a place reportedly frequented by drug addicts. They chanced upon
a male person who had “reddish eyes and [was] walking in a swaying manner.” Suspecting that
the man was high on drugs, the police officers approached him, introduced themselves, and
asked him what he was holding. However, the man resisted. Upon further investigation, the
police officers found marijuana in the man’s possession. The Court held that the circumstances
of the case gave the police officers justifiable reason to stop the man and investigate if he was
high on drugs. In People v. Solayao, the police officers were conducting an intelligence patrol
to verify reports on the presence of armed persons within Caibiran. They met a group of drunk
men, one (1) of whom was the accused in a camouflage uniform. When the police officers
approached, his companions fled leaving behind the accused who was told not to run
away. One (1) of the police officers introduced himself and seized from the accused a firearm
wrapped in dry coconut leaves. The Court likewise found justifiable reason to stop and frisk the
accused when “his companions fled upon seeing the government agents.” The “stop and frisk”
searches in these two (2) cases were considered valid because the accused in both cases
exhibited overt acts that gave law enforcers genuine reason to conduct a “stop and frisk”
search.” (Veridiano vs. People, G.R. No. 200370, June 7, 2017)

“Stop and frisk” searches (sometimes referred to as Terry searches) are necessary for
law enforcement. That is, law enforcers should be given the legal arsenal to prevent the
commission of offenses. However, this should be balanced with the need to protect the privacy
of citizens in accordance with Article III, Section 2 of the Constitution. The balance lies in the
concept of “suspiciousness” present in the situation where the police officer finds himself or
herself in. This may be undoubtedly based on the experience of the police officer. Experienced
police officers have personal experience dealing with criminals and criminal behavior. Hence,
they should have the ability to discern — based on facts that they themselves observe —
whether an individual is acting in a suspicious manner. Clearly, a basic criterion would be that

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the police officer, with his or her personal knowledge, must observe the facts leading to the
suspicion of an illicit act. (People vs. Cogaed, G.R. No. 200334, July 30, 2014)

But in Sabuco vs. People, G.R. No. 211214, March 20, 2019, the Supreme Court, again
through Mr. Justice Leonen, held that “to sustain the validity of a stop and frisk search, the
arresting officer should have personally observed two (2) or more suspicious circumstances,
the totality of which would then create a reasonable inference of criminal activity to compel the
arresting officer to investigate further.”

III. PLAIN VIEW DOCTRINE

As discussed in People vs. Doria, et al, G.R. No. 125299, January 22, 1999, People vs.
Salanguit, G.R. No. 133254-55, April 19, 2001 and Miclat vs. People, G.R. No. 176077,
August 31, 2011, “[o]bjects falling in plain view of an officer who has a right to be in a position
to have that view are subject to seizure even without a search warrant and may be introduced in
evidence. The “plain view” doctrine applies when the following requisites concur: (a) the law
enforcement officer in search of the evidence has a prior justification for an intrusion or is in a
position from which he can view a particular area; (b) the discovery of evidence in plain view
is inadvertent; and (c) it is immediately apparent to the officer that the item he observes may be
evidence of a crime, contraband or otherwise subject to seizure. The law enforcement officer
must lawfully make an initial intrusion or properly be in a position from which he can
particularly view the area. In the course of such lawful intrusion, he came inadvertently across
a piece of evidence incriminating the accused. The object must be open to eye and hand and its
discovery inadvertent… It is clear, therefore, that an object is in plain view if the object itself is
plainly exposed to sight.”

The difficulty arises when the object is inside a closed container. Where the object
seized was inside a closed package, the object itself is not in plain view and therefore cannot be
seized without a warrant. Thus, in case the plastic wrapper was not colorless and transparent as
to clearly manifest its contents to a viewer and that the ten (10) bricks of marijuana in the box
was individually wrapped in old newspaper and placed inside plastic bags — white, pink or
blue in color, it is not immediately apparent to the searching officer that the content of the box
was marijuana, hence, the marijuana is not in plain view and its seizure without the requisite
search warrant in in violation of the law and the Constitution. It is fruit of the poisonous tree
and should be excluded as evidence (People vs. Doria, et al, G.R. No. 125299, January 22,
1999; see also People vs. Salanguit, G.R. No. 133254-55-April 19, 2001). However, if the
package proclaims its contents, whether by its distinctive configuration, its transparency, or if
its contents are obvious to an observer, then the contents are in plain view and may be seized.
In other words, if the package is such that an experienced observer could infer from its
appearance that it contains the prohibited article, then the article is deemed in plain view. It
must be immediately apparent to the police that the items that they observe may be evidence of
a crime, contraband or otherwise subject to seizure (People vs. Doria, et al, G.R. No. 125299,
January 22, 1999).

IV. SEARCH OF A MOVING VEHICLE

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 In Veridiano vs. People, G.R. No. 200370, June 7, 2017 , Justice Leonen, speaking for
the Supreme Court, explained that the rules governing searches and seizures have been
liberalized when the object of a search is a vehicle for practical purposes. Still, law enforcers
must act on the basis of probable cause. To paraphrase him, he said that a checkpoint search is
a variant of a search of a moving vehicle. Checkpoints per se are not invalid. They are allowed
in exceptional circumstances to protect the lives of individuals and ensure their safety. But
because routine checkpoints intrude “on a motorist’s right to ‘free passage’ they must be
“conducted in a way least intrusive to motorists.” The extent of routine inspections must be
limited to a visual search. Routine inspections do not give law enforcers carte blanche to
perform warrantless searches. In Valmonte v. De Villa, it was clarified that “[f]or as long as
the vehicle is neither searched nor its occupants subjected to a body search, and the inspection
of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative
of an individual’s right against unreasonable searches.” Thus, a search where an “officer
merely draws aside the curtain of a vacant vehicle which is parked on the public fair grounds,
or simply looks into a vehicle, or flashes a light therein” is not unreasonable. This is not to say
that an extensive search may not be conducted on a vehicle at a checkpoint. It may be done
when law enforcers have probable cause to believe that the vehicle’s passengers committed a
crime or when the vehicle contains instruments of an offense. Law enforcers cannot act solely
on the basis of confidential or tipped information. A tip is still hearsay no matter how reliable it
may be. It is not sufficient to constitute probable cause in the absence of any other
circumstance that will arouse suspicion. In People v. Breis, apart from the tipped information
they received, the law enforcement agents observed suspicious behavior on the part of the
accused that gave them reasonable ground to believe that a crime was being committed. The
accused attempted to alight from the bus after the law enforcers introduced themselves and
inquired about the ownership of a box which the accused had in their possession. In their
attempt to leave the bus, one (1) of the accused physically pushed a law enforcer out of the
way. Immediately alighting from a bus that had just left the terminal and leaving one’s
belongings behind is unusual conduct. In People v. Mariacos, a police officer received
information that a bag containing illegal drugs was about to be transported on a passenger
jeepney. The bag was marked with “O.K.” On the basis of the tip, a police officer conducted
surveillance operations on board a jeepney. Upon seeing the bag described to him, he peeked
inside and smelled the distinct odor of marijuana emanating from the bag. The tipped
information and the police officer’s personal observations gave rise to probable cause that
rendered the warrantless search valid. The police officers in People v. Ayangao and People v.
Libnao likewise received tipped information regarding the transport of illegal drugs.
In Libnao, the police officers had probable cause to arrest the accused based on their three (3)-
month long surveillance operation in the area where the accused was arrested. On the other
hand, in Ayangao, the police officers noticed marijuana leaves protruding through a hole in one
(1) of the sacks carried by the accused.”

In Caballes vs. Court of Appeals, G.R. No. 136292, January 15, 2002, Justice (later
Chief Justice) Puno explained that “[o]ne such form of search of moving vehicles is the “stop-
and-search” without warrant at military or police checkpoints which has been declared to be
not illegal per se, for as long as it is warranted by the exigencies of public order and conducted
in a way least intrusive to motorists. A checkpoint may either be a mere routine inspection or it
may involve an extensive search… Routine inspections are not regarded as violative of an

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individual’s right against unreasonable search. The search which is normally permissible in this
instance is limited to the following instances: (1) where the officer merely draws aside the
curtain of a vacant vehicle which is parked on the public fair grounds; (2) simply looks into a
vehicle; (3) flashes a light therein without opening the car’s doors; (4) where the occupants are
not subjected to a physical or body search; (5) where the inspection of the vehicles is limited to
a visual search or visual inspection; and (6) where the routine check is conducted in a fixed
area.”

Quite recently, in the case of People vs. Sapla, G.R. No. 244045, June 16, 2020, the
Supreme Court En Banc reiterated the rule that a tip from an informer alone is not enough to
create probable cause. The Supreme Court En Banc also clarified that when the police shall
search a pre-determined person inside a vehicle, the search is not a search of a moving vehicle.

The facts of the case are as follows: On January 10, 2014 at around 11:30 in the
morning, an officer on duty at the Regional Public Safety Battalion (RPSB) office received a
phone call from a concerned citizen who informed the said office that a certain male individual
would be transporting marijuana from Kalinga and into the Province of Isabela. After
coordination with the Philippine Drug Enforcement Agency (PDEA) was made and after a
briefing on the said information, a team was organized to intercept the said individual. At
around 1:00 in the afternoon, the RPSB hotline received a text message describing what the
individual was wearing and was carrying a blue sack on board a passenger jeepney with plate
number AYA 270 bound for Roxas, Isabela. Subsequently, a joint check point was strategically
organized at the Talaca command post. The passenger jeepney then arrived at around 1:20 in
the afternoon, wherein the police officers at the Talaca checkpoint flagged down the said
vehicle and told its driver to park on the side of the road. Officers Labbutan and Mabiasan
approached the jeepney and saw Jerry Sapla (Sapla) seated at the rear side of the vehicle. The
said officers asked him if he was the owner of the blue sack in front of him, which the latter
answered in the affirmative. The said officers then requested Sapla to open the blue sack.
After Sapla opened the sack, officers Lito Labbutan (Labbutan) and Jim Mabiasan (Mabiasan)
saw four (4) bricks of suspected dried marijuana leaves, wrapped in newspaper and an old
calendar. PO3 Labbutan subsequently arrested Sapla, informed him of the cause of his arrest
and his constitutional rights. Thereafter, PO2 Mabiasan seized the four (4) bricks of suspected
dried marijuana leaves and brought them to their office at the Talaca detachment for proper
markings. When examined, the specimen yielded positive results for the presence of marijuana.

As stated earlier, the Supreme Court held that “the situation presented in the instant
case cannot be considered as a search of a moving vehicle.” Citing People vs. Comprado, G.R.
No. 213225, April 4, 2018, “in search of a moving vehicle, the vehicle is the target and not a
specific person and the vehicle is intentionally used as a means to transport illegal items.
Applying the foregoing to the instant case, it cannot be seriously disputed that the target of the
search conducted was not the passenger jeepney boarded by Sapla nor the cargo or contents of
the said vehicle. The target of the search was the person who matched the description given by
the person who called the RPSB hotline i.e. the person wearing a collared white t-shirt with
green stripes, red bull cap and carrying a blue sack.”

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 The Supreme Court further explained that “even if the search conducted can be
characterized as a search of a moving vehicle, the operation undertaken by the authorities
cannot be deemed a valid warrantless search of a moving vehicle.”

Although setting up of military or police check points is not illegal per se for as long as
long its necessity is justified by the exigencies of public order, however, the “search must be
limited to the following: (a) where the officer merely draws aside the curtain of a vacant
vehicle which is parked on the public fair grounds; (b) simply looks into a vehicle; (c) flashes a
light therein without opening the car’s doors; (d) where the occupants are not subjected to a
physical or body search; (e) where the inspection of the vehicles is limited to a visual search or
visual inspection; and (f) where the routine check is conducted in a fixed area.”

A “more extensive and intrusive search that goes beyond a mere visual search of the
vehicle necessitates probable cause on the part of the apprehending officers.” “Probable cause
means that there is the existence of such facts and circumstances which could lead a reasonably
discreet and prudent man to believe that an offense has been committed and that the items,
articles or objects sought in connection with said offense or subject to seizure and destruction
by law is in the place to be searched.”

A mere reception of a text message from an anonymous person is not sufficient to

create probable cause that enables the authorities to conduct an extensive and intrusive search
without a search warrant. “Law enforcers cannot act solely on the basis of confidential or
tipped information. A tip is still hearsay no matter how reliable it may be. It is not sufficient to
constitute probable cause in the absence of any other circumstance that will arouse suspicion.”

Now, a cursory reading of the decision will show that the En Banc ruling in People vs.
Malmsdedt, G.R. No. 91107, June 19, 1991 was not abandoned. Sapla even cited Malmsdedt
to explain that the warrantless search conducted on Malmsdedt was not only based on the tip
but on the other suspicious circumstances personally observed by the Narcom officers. For
easy understanding let us revisit the facts and the ruling of the Supreme Court.

At about 8: 00 o’clock in the morning of 11 May 1989, Captain Alen Vasco, the
Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa,
ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain
Province, for the purpose of checking all vehicles coming from the Cordillera Region. The
order to establish a checkpoint in the said area was prompted by the information received by
the Commanding Officer of NARCOM that a Caucasian coming from Sagada had in his
possession prohibited drugs and by persistent reports that vehicles coming from Sagada were
transporting marijuana and other prohibited drugs. The group composed of seven (7)
NARCOM officers, in coordination with Tublay Police Station, set up a checkpoint at the
designated area at about 10:00 o’clock in the morning and inspected all vehicles coming from
the Cordillera Region. At about 1:30 o’clock in the afternoon, the bus where accused was
riding was stopped. Sgt. Fider and CIC Galutan boarded the bus and announced that they were
members of the NARCOM and that they would conduct an inspection. The two (2) NARCOM
officers started their inspection from the front going towards the rear of the bus. Accused who
was the sole foreigner riding the bus was seated at the rear thereof.

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 During the inspection, CIC Galutan noticed a bulge on accused’s waist. Suspecting the
bulge on accused’s waist to be a gun, the officer asked for accused’s passport and other
identification papers. When accused failed to comply, the officer required him to bring out
whatever it was that was bulging on his waist. The bulging object turned out to be a pouch bag
and when accused opened the same bag, as ordered, the officer noticed four (4) suspicious-
looking objects wrapped in brown packing tape, prompting the officer to open one (1) of the
wrapped objects. The wrapped objects turned out to contain hashish, a derivative of marijuana.

Thereafter, accused was invited outside the bus for questioning. But before he alighted
from the bus, accused stopped to get two (2) travelling bags from the luggage carrier. Upon
stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in
each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the same
which did not feel like foam stuffing. It was only after the officers had opened the bags that
accused finally presented his passport.

Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La
Trinidad, Benguet for further investigation. At the investigation room, the officers opened the
teddy bears and they were found to also contain hashish. Representative samples were taken
from the hashish found among the personal effects of accused and the same were brought to the
PC Crime Laboratory for chemical analysis. In the chemistry report, it was established that the
objects examined were hashish, a prohibited drug which is a derivative of marijuana.

The Supreme Court En Banc held that “[a]ccused was searched and arrested while
transporting prohibited drugs (hashish). A crime was actually being committed by the accused
and he was caught in flagrante delicto. Thus, the search made upon his personal effects falls
squarely under paragraph (1) of the foregoing provisions of law, which allow a warrantless
search incident to a lawful arrest… While it is true that the NARCOM officers were not armed
with a search warrant when the search was made over the personal effects of accused, however,
under the circumstances of the case, there was sufficient probable cause for said officers to
believe that accused was then and there committing a crime… Probable cause has been defined
as such facts and circumstances which could lead a reasonable, discreet and prudent man to
believe that an offense has been committed, and that the objects sought in connection with the
offense are in the place sought to be searched. The required probable cause that will justify a
warrantless search and seizure is not determined by any fixed formula but is resolved according
to the facts of each case… Warrantless search of the personal effects of an accused has been
declared by this Court as valid, because of existence of probable cause, where the smell of
marijuana emanated from a plastic bag owned by the accused, or where the accused was acting
suspiciously, and attempted to flee… Aside from the persistent reports received by the
NARCOM that vehicles coming from Sagada were transporting marijuana and other prohibited
drugs, their Commanding Officer also received information that a Caucasian coming from
Sagada on that particular day had prohibited drugs in his possession. Said information was
received by the Commanding Officer of NARCOM the very same morning that accused came
down by bus from Sagada on his way to Baguio City… When NARCOM received the
information, a few hours before the apprehension of herein accused, that a Caucasian travelling
from Sagada to Baguio City was carrying with him prohibited drugs, there was no time to

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obtain a search warrant… It must be observed that, at first, the NARCOM officers merely
conducted a routine check of the bus (where accused was riding) and the passengers therein,
and no extensive search was initially made. It was only when one of the officers noticed a
bulge on the waist of accused, during the course of the inspection, that accused was required to
present his passport. The failure of accused to present his identification papers, when ordered
to do so, only managed to arouse the suspicion of the officer that accused was trying to hide his
identity. For is it not a regular norm for an innocent man, who has nothing to hide from the
authorities, to readily present his identification papers when required to do so… The receipt of
information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his
possession, plus the suspicious failure of the accused to produce his passport, taken together as
a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide
something illegal from the authorities. From these circumstances arose a probable cause which
justified the warrantless search that was made on the personal effects of the accused. In other
words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in
opening one of the wrapped objects found inside said bag (which was discovered to contain
hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish
stuffed inside them, were prompted by accused’s own attempt to hide his identity by refusing
to present his passport, and by the information received by the NARCOM that a Caucasian
coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM agents
of the ability and facility to act accordingly, including, to search even without warrant, in the
light of such circumstances, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society.”

V. CONSENTED WARRANTLESS SEARCH

In Caballes vs. Court of Appeals, G.R. No. 136292, January 15, 2002, the Supreme
Court explained that in those cases where the Court held that the search was validly consented
to by the accused, the police officers’ request to search personnel effects was orally articulated
to the accused and in such language that left no room for doubt that the latter fully understood
what was requested. In some instance, the accused even verbally replied to the request
demonstrating that he also understood the nature and consequences of such request. In case of
consented searches or waiver of the constitutional guarantee against obtrusive searches, it is
fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) that the
person involved had knowledge, either actual or constructive, of the existence of such right;
and (3) the said person had an actual intention to relinquish the right.

In Asuncion vs. Court of Appeals, 302 SCRA 490, February 1, 1999, the apprehending
officers sought the permission of petitioner to search the car, to which the latter agreed.
Petitioner therein himself freely gave his consent to said search. In People vs. Lacerna , 278
SCRA 561, September 1, 1997, the appellants who were riding in a taxi were stopped by two (2)
policemen who asked permission to search the vehicle and the appellants readily agreed. In
upholding the validity of the consented search, the Court held that appellant himself who was
“urbanized in mannerism and speech” expressly said that he was consenting to the search as he
allegedly had nothing to hide and had done nothing wrong. In People vs. Cuizon, 256 SCRA
325, April 18, 1996, the accused admitted that they signed a written permission stating that they
freely consented to the search of their luggage by the National Bureau of Investigation (NBI)

11
agents to determine if they were carrying shabu. In People vs. Montilla, 285 SCRA 703,
January 30, 1998, it was held that the accused spontaneously performed affirmative acts of
volition by himself opening the bag without being forced or intimidated to do so, which acts
should properly be construed as a clear waiver of his right. In People vs. Omaweng, 213 SCRA
462, September 2, 1992, the police officers asked the accused if they could see the contents of
his bag to which the accused said “you can see the contents but those are only clothings.” Then,
the policemen asked if they could open and see it, and accused answered “you can see it.” The
Court said there was a valid consented search.

In the aforesaid Caballes case, Sgt. Victorino Noceja testified that after he flagged
down the vehicle of Rudy Caballes (Caballes), he saw aluminum wires and asked him what
was his load but “he did not answer…I told him I will look at the contents of his vehicle
and he answered in the positive.” The High Court said that this kind of evidence is not
sufficient to show that Caballes intentionally surrendered his right against unreasonable
searches. It is hard to believe that “by uttering those words, the police officers were asking or
requesting for permission that they be allowed to search the vehicle of petitioner. For all intents
and purposes, they were informing, nay, imposing upon the petitioner that they will search his
vehicle. The “consent” given under intimidating or coercive circumstances is no consent within
the purview of the constitutional guaranty. In addition, in cases where the Court upheld the
validity of consented search, it will be noted that the police authorities expressly asked, in no
uncertain terms, for the consent of the accused to be searched. And the consent of the accused
was established by clear and positive proof.” In this case of Caballes, “the statements of the
police officers were not asking for his consent; they were declaring to him that they will look
inside his vehicle.”

“Neither can [Caballes] passive submission be construed as an implied acquiescence to

the warrantless search. In People vs. Barros, appellant Barros, who was carrying a carton box,
boarded a bus where two policemen were riding. The policemen inspected the carton and found
marijuana inside. When asked who owned the box, appellant denied ownership of the box and
failed to object to the search. The Court there struck down the warrantless search as illegal and
held that the accused is not to be presumed to have waived the unlawful search conducted
simply because he failed to object, citing the ruling in the case of People vs. Burgos, 144
SCRA 1 (1986) to wit:

“As the constitutional guaranty is not dependent upon any affirmative act of the
citizen, the courts do not place the citizens in the position of either contesting an
officer’s authority by force, or waiving his constitutional rights; but instead they
hold that a peaceful submission to a search or seizure is not a consent or an
invitation thereto, but is merely a demonstration of regard for the supremacy of the
law.”

In People vs. Tudtud, et al, G.R. No. 144037, September 26, 2003, which was cited in
People vs. Sapla, the Toril Police Station, Davao City received a report that a certain Noel
Tudtud (Tudtud) was responsible for the proliferation of marijuana in their area. Then the
informant told the police that Tudtud had headed to Cotabato and would be back later that day
with new stocks of marijuana. The informant described Tudtud as big-bodied and short, and

12
usually wore a hat. At around 4:00 o’clock in the afternoon that same day, a team composed of
PO1 Desierto, PO1 Floreta and SPO1 Villalonghan posted themselves at the corner of Saipon
and McArthur Highway to await Tudtud’s arrival. All wore civilian clothes. About 8:00
o’clock later that evening, two (2) men disembarked from a bus and helped each other carry a
carton 12 marked “King Flakes.” Standing some five (5) feet away from the men, PO1 Desierto
and PO1 Floreta observed that one of the men fit Tudtud’s description. The same man also
toted a plastic bag. PO1 Floreta and PO1 Desierto then approached the suspects and identified
themselves as police officers. PO1 Desierto asked him if he could see the contents of the box.
Tudtud obliged, saying, “it was alright.” Tudtud opened the box himself as his companion
looked on. The box yielded pieces of dried fish, beneath which were two (2) bundles, one (1)
wrapped in a striped plastic bag and another in newspapers. PO1 Desierto asked Tudtud to
unwrap the packages. They contained what seemed to the police officers as marijuana leaves.
When examined by the forensic chemist, they were found to be marijuana. The Supreme Court
held that Tudtud did not consent to the search of his bag by simply saying "it was alright."…
There is an effective waiver of rights against unreasonable searches and seizures if the
following requisites are present: (1) It must appear that the rights exist; (2) The person involved
had knowledge, actual or constructive, of the existence of such right; (3) Said person had an
actual intention to relinquish the right.” T

“The prosecution failed to establish the second and third requisites. When the police
officers introduced themselves as such and requested appellant that they see the contents of the
carton box supposedly containing the marijuana, appellant Tudtud said “it was alright.” He did
not resist and opened the box himself. The fundamental law and jurisprudence require more
than the presence of these circumstances to constitute a valid waiver of the constitutional right
against unreasonable searches and seizures. Courts indulge every reasonable presumption
against waiver of fundamental constitutional rights; acquiescence in the loss of fundamental
rights is not to be presumed. The fact that a person failed to object to a search does not amount
to permission thereto.”

“…As the constitutional guaranty is not dependent upon any affirmative act of the
citizen, the courts do not place the citizen in the position of either contesting an officer’s
authority by force, or waiving his constitutional rights; but instead they hold that a peaceful
submission to all search or seizure is not a consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the law… Thus, even in cases where the accused
voluntarily handed her bag or the chairs containing marijuana to the arresting officer, this
Court held there was no valid consent to the search… On the other hand, because a warrantless
search is in derogation of a constitutional right, peace officers who conduct it cannot invoke
regularity in the performance of official functions and shift to the accused the burden of
proving that the search was unconsented.”

In Veridiano vs. People, G.R. No. 200370, June 7, 2017, the Court emphasized that the
consent to a warrantless search and seizure must be unequivocal, specific, intelligently given
and unattended by duress or coercion. Mere passive conformity to the warrantless search is
only an implied acquiescence which does not amount to consent and that the presence of a
coercive environment negates the claim that the petitioner therein consented to the warrantless
search.

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 In People vs. Cogaed, G.R. No. 200334, July 30, 2014, the High Court said that “there
can be no valid waiver of Cogaed’s constitutional rights even if we assume that he did not
object when the police asked him to open his bags. Cogaed’s silence should not be lightly taken
as consent to such search. The implied acquiescence to the search, if there was any, could not
have been more than mere passive conformity given under intimidating or coercive
circumstances and is thus considered no consent at all within the purview of the constitutional
guarantee… Cogaed’s silence or lack of aggressive objection was a natural reaction to a
coercive environment brought about by the police officer’s excessive intrusion into his private
space. The prosecution and the police carry the burden of showing that the waiver of a
constitutional right is one which is knowing, intelligent, and free from any coercion. In all
cases, such waivers are not to be presumed.

In People vs. Sapla, G.R. No. 244045, June 16, 2020, “Sapla’s apparent consent to the
search conducted by the police was not unequivocal, specific, intelligently given, and
unattended by duress or coercion. It cannot be seriously denied that accused-appellant Sapla
was subjected to a coercive environment, considering that he was confronted by several armed
police officers in a checkpoint. In fact, from the testimony of PO3 Mabiasan himself, it
becomes readily apparent that accused-appellant Sapla’s alleged voluntary opening of the sack
was not unequivocal. When PO3 Mabiasan asked accused-appellant Sapla to open the sack, the
latter clearly hesitated and it was only “after a while that he voluntarily opened the sack.” At
most, accused-appellant Sapla’s alleged act of opening the blue sack was mere passive
conformity to a warrantless search conducted in a coercive and intimidating environment.”

VI. CUSTOMS SEARCH

It was explained in Dela Cruz vs. People, G.R. No. 209387, January 11, 2016 that
“[c]ustoms searches, as exception to the requirement of a valid search warrant, are allowed
when “persons exercising police authority under the customs law . . . effect search and seizure .
. . in the enforcement of customs laws.” The Tariff and Customs Code provides the authority
for such warrantless search”. In Papa, et al. vs. Mago, et al. 130 Phil. 886, 902, February 28,
1968, the High Court explained that the “Code authorizes persons having police authority
under Section 2203 of the Tariff and Customs Code to enter, pass through or search any land,
inclosure, warehouse, store or building, not being a dwelling house; and also to inspect, search
and examine any vessel or aircraft and any trunk, package, box or envelope or any person on
board, or stop and search and examine any vehicle, beast or person suspected of holding or
conveying any dutiable or prohibited article introduced into the Philippines contrary to law,
without mentioning the need of a search warrant in said cases…”

Hence, to be a valid customs search, the requirements are: (1) the person/s conducting
the search was/were exercising police authority under customs law; (2) the search was for the
enforcement of customs law; and (3) the place searched is not a dwelling place or house.

3. CONTROLLED DELIVERY

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 Controlled delivery is an investigative technique of allowing illicit or suspect
consignment (e.g. dangerous drugs or contrabands) to pass out of, through or into the territory
of one or more countries, with the knowledge and under the supervision of their competent
authorities, with a view to identify the ringleaders of drug trafficking group, their modi
operandi, organizational structure and distribution networks.

In the Philippines, it is an investigative technique of allowing an unlawful or suspect

consignment of any dangerous drugs, controlled precursor, essential chemicals, equipment or
paraphernalia or property believed to be derived directly or indirectly from any offense, to pass
into, through or out of the country under the supervision of an authorized officer, with a view
to gathering evidence to identify any person involved in a dangerous drug related offense or to
facilitate prosecution of that offense (Sec. 1 (b) of DDB Regulation 2, Series of 2012).

4. ENTRAPMENT/BUY BUST OPERATION

A buy-bust operation is a form of entrapment employed by peace officers as an

effective way of apprehending a criminal in the act of the commission of an offense. A certain
amount of entrapment in every arrest is needed to in order to outwit the persons violating or
about to violate the law (People vs. Doria, 301 SCRA 668, January 22, 1999; People v.
Jocson, G.R. No. 169875, December 18, 2007, 540 SCRA 585, 592; People vs. Lim, et al, G.R.
No. 187503, September 11, 2009).

However, a buy-bust operation has a significant downside that has not escaped the
attention of the framers of the law. It is susceptible to police abuse, the most notorious of which
is its use as a tool for extortion (People vs. Dahil, G.R. No. 212196, January 12, 2015). In
People vs. Doria et al, 301 SCRA 668, January 22, 1999, the Supreme Court “has taken
judicial notice of [the] ugly reality in a number of cases where [it] observed that it is a
common modus operandi of corrupt law enforcers to prey on weak and hapless persons,
particularly unsuspecting provincial hicks. The use of shady underworld characters as
informants, the relative ease with which illegal drugs may be planted in the hands or property
of trusting and ignorant persons, and the imposed secrecy that inevitably shrouds all drug deals
have compelled this Court to be extra-vigilant in deciding drug cases… For entrapment is a
facet of a broader problem. Along with illegal search and seizures, wiretapping, false arrest,
illegal detention and the third degree, it is a type of lawless enforcement. They all spring from
common motivations. Each is a substitute for skillful and scientific investigation. Each is
condoned by the sinister sophism that the end, when dealing with known criminals of the
‘criminal class’, justifies the employment of illegal means. It is the duty of courts to preserve
the purity of their own temple from the prostitution of the criminal law through lawless
enforcement. Courts should not allow themselves to be used as an instrument of abuse and
injustice lest an innocent person be made to suffer the unusually severe penalties for drug
offenses.” Similarly in People v. Tan, (G.R. No. 133001, December 14, 2000, 348 SCRA 116,
126-127, citing People v. Gireng, 241 SCRA 11 (1995) and People v. Pagaura, 267 SCRA 17
(1997), the Supreme Court recognized that by the very nature of anti-narcotics operations, it is
easy to plant in the pockets of or hands of unsuspecting citizens sticks of marijuana or grams of
heroin and because of the secrecy that inevitably shrouds all drug deals, the possibility of abuse

15
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.”

In People vs. Hilario, G.R. No. 210610, January 11, 2018, it was held that the lack of
specific details on the planning and conduct of the buy bust operation on January 22, 2008 in
Brgy. Maguihan casts serious doubts that it actually took place and/or that the police officers
carried out the same in the regular performance of their official duties. Citing previous
decisions, the High Court reiterated that “to determine whether there was a valid entrapment or
whether proper procedures were undertaken in effecting the buy-bust operation, it is incumbent
upon the courts to make sure that the details of the operation are clearly and adequately laid out
through relevant, material and competent evidence. For, the courts could not merely rely on but
must apply with studied restraint the presumption of regularity in the performance of official
duty by law enforcement agents. This presumption should not by itself prevail over the
presumption of innocence and the constitutionally protected rights of the individual. It is the
duty of courts to preserve the purity of their own temple from the prostitution of the criminal
law through lawless enforcement. Courts should not allow themselves to be used as
instruments of abuse and injustice lest innocent persons are made to suffer the unusually severe
penalties for drug offenses.”

In People vs. Bartolome, G.R. No. 191726, February 06, 2013, the Supreme Court
citing People v. Bayani, explained that a buy-bust operation is a form of entrapment and it is a
valid means of arresting violators of Republic Act No. 9165. It is an effective way of
apprehending law offenders in the act of committing a crime. A police officer’s act of soliciting
drugs from the accused during a buy-bust operation, or what is known as a “decoy solicitation,”
is not prohibited by law and does not render invalid the buy-bust operations. The sale of
contraband is a kind of offense habitually committed, and the solicitation simply furnishes
evidence of the criminal’s course of conduct. In People v. Sta. Maria, the Court clarified that a
“decoy solicitation” is not tantamount to inducement or instigation.

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. Thus, in
instigation, officers of the law or their agents incite, induce, instigate or lure an accused into
committing an offense which he or she would otherwise not commit and has no intention of
committing. But in entrapment, the criminal intent or design to commit the offense charged
originates in the mind of the accused, and law enforcement officials merely facilitate the
apprehension of the criminal by employing ruses and schemes; thus, the accused cannot justify
his or her conduct. In instigation, where law enforcers act as co-principals, the accused will
have to be acquitted. But entrapment cannot bar prosecution and conviction. As has been said,
instigation is a “trap for the unwary innocent,” while entrapment is a “trap for the unwary
criminal.”

In People v. Dansico, 644, SCRA 151, February 23, 2011, the police organized a buy-
bust operation against the accused Romeo Dansico (Dansico) because of reports that the
accused was engaged in peddling marijuana. The buy-bust team proceeded to the nipa hut
owned by the accused. The confidential informant informed the accused that he wanted to buy

16
P5,000 worth of marijuana. He handed the buy-bust money to the accused who left in a
motorcycle to get the marijuana. After three (3) hours, more or less, the accused returned with a
brick, allegedly marijuana, wrapped in a newspaper. Accused Dansico gave it to the informant.
At this point, the informant gave the pre-arranged signal. The team immediately apprehended
accused Dansico. The Supreme Court said that entrapment, not instigation, was employed by
the police. “Instigation means luring the accused into a crime that he, otherwise, had no
intention to commit, in order to prosecute him. On the other hand, entrapment is the
employment of ways and means in order to trap or capture a lawbreaker. Instigation
presupposes that the criminal intent to commit an offense originated from the inducer and not
the accused who had no intention to commit the crime and would not have committed it were it
not for the initiatives by the inducer. In entrapment, the criminal intent or design to commit the
offense charged originates in the mind of the accused; the law enforcement officials merely
facilitate the apprehension of the criminal by employing ruses and schemes. In instigation, the
law enforcers act as active co-principals. Instigation leads to the acquittal of the accused, while
entrapment does not bar prosecution and conviction.”

It was held in People vs. Gayoso, G.R. No. 206590, March 27, 2017, that a “test-buy”
operation conducted by the police officers is not prohibited by law. It does not amount to
instigation. The solicitation of drugs from appellant by the poseur buyer merely furnishes
evidence of a course of conduct.

HOW SHOULD A COURT ASSESS WHETHER THE OPERATION OF THE POLICE IS

ENTRAPMENT OR INSTIGATION?

In People vs. Doria, 301 SCRA 668, January 22, 1999, the Supreme Court En Banc,
through Mr. Justice, later Chief Justice, Reynato Puno, gives us the tests to determine if it is the
police or the accused who is telling the truth. The case also traces the origin of instigation and
entrapment.

The three (3) tests are: (1) subjective or origin of intent test; (2) objective test; and (3)
hybrid approaches. We quote the pertinent discussion on these subjects, as follows:

“The subjective or origin of intent test was laid down in Sorrells v. United States to
determine whether entrapment actually occurred. Under this test, the “focus of the inquiry is on
the accused’s predisposition to commit the offense charged, his state of mind and inclination
before his initial exposure to government agents. All relevant facts such as the accused’s
mental and character traits, his past offenses, activities, his eagerness in committing the crime,
his reputation, etc., are considered to assess his state of mind before the crime. The
predisposition test emphasizes the accused’s propensity to commit the offense rather than the
officer’s misconduct and reflects an attempt to draw a line between a “trap for the unwary
innocent and the trap for the unwary criminal.” If the accused was found to have been ready
and willing to commit the offense at any favorable opportunity, the entrapment defense will fail
even if a police agent used an unduly persuasive inducement.”
The objective test was first authoritatively laid down in the case of Grossman v.
State rendered by the Supreme Court of Alaska. The “objective” test in buy-bust operations
demands that the details of the purported transaction must be clearly and adequately shown.

17
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 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.” (This was reiterated in People vs. Lim, et al, G.R. No. 187503, September 11,
2009; People vs. Araneta. et al, G.R. No. 191064, October 10, 2010 and People vs. Hilario,
G.R. No. 210610, January 11, 2018).

On the other hand, “the hybrid approaches combine and apply the “objective” and
“subjective” tests alternatively or concurrently.”

“It can thus be seen that the concept of entrapment in the American jurisdiction is
similar to instigation or inducement in Philippine jurisprudence. Entrapment in the Philippines
is not a defense available to the accused. It is instigation that is a defense and is considered an
absolutory cause. To determine whether there is a entrapment or instigation, our courts have
mainly examined the conduct of the apprehending officers, not the predisposition of the
accused to commit the crime. The “objective” test first applied in United States v. Phelps has
been followed in a series of similar cases. Nevertheless, adopting the “objective” approach has
not precluded us from likewise applying the “subjective” test. In People v. Boholst, we
applied both tests by examining the conduct of the police officers in a buy-bust operation and
admitting evidence of the accused’s membership with the notorious and dreaded Sigue-Sigue
Sputnik Gang. We also considered accused’s previous convictions of other crimes and held
that his opprobrious past and membership with the dreaded gang strengthened the state’s
evidence against him. Conversely, the evidence that the accused did not sell or smoke
marijuana and did not have any criminal record was likewise admitted in People v.
Yutuc thereby sustaining his defense that led to his acquittal.”

“The distinction between entrapment and instigation has proven to be very material in
anti-narcotics operations. In recent years, it has become common practice for law enforcement
officers and agents to engage in buy-bust operations and other entrapment procedures in
apprehending drug offenders. Anti-narcotics laws, like anti-gambling laws are regulatory
statutes. They are rules of convenience designed to secure a more orderly regulation of the
affairs of society, and their violation gives rise to crimes mala prohibita. They are not the
traditional type of criminal law such as the law of murder, rape, theft, arson, etc. that deal with
crimes mala in se or those inherently wrongful and immoral. Laws defining crimes mala
prohibita condemn behavior directed, not against particular individuals, but against public
order. Violation is deemed a wrong against society as a whole and is generally unattended with
any particular harm to a definite person. These offenses are carried on in secret and the

18
violators resort to many devices and subterfuges to avoid detection. It is rare for any member of
the public, no matter how furiously he condemns acts mala prohibita, to be willing to assist in
the enforcement of the law. It is necessary, therefore, that government in detecting and
punishing violations of these laws, rely, not upon the voluntary action of aggrieved individuals,
but upon the diligence of its own officials. This means that the police must be present at the
time the offenses are committed either in an undercover capacity or through informants, spies
or stool pigeons.”

The hybrid approach was applied in People v. Dansico, 644 SCRA 151, February 23,
2011 whereby the Supreme Court said “[t]o determine whether there is instigation or
entrapment, the conduct of the apprehending officers and the predisposition of the accused to
commit the crime must be examined. Buy-bust operations demand that the details of the
purported transaction must be clearly and adequately shown. This must start from the (1) initial
contact between the poseur-buyer and the pusher; (2) the offer to purchase, the promise or
payment of the consideration, and (3) until the consummation of the sale by the delivery of the
illegal drug subject of the sale. 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.”

ISSUE ON HANDLING THE BUY BUST AND CONFISCATED DRUGS

A “single police officer’s act of bodily keeping the seized drugs is viewed with distrust,
fraught with dangers, reckless, if not dubious, and a doubtful and suspicious way of ensuring
the integrity of the items… Keeping one of the seized items in his right pocket and the rest in
his left pocket is a doubtful and suspicious way of ensuring the integrity of the items…
Common sense dictates that a single police officer’s act of bodily-keeping the item(s) which is
at the crux of offenses penalized under the Comprehensive Dangerous Drugs Act of 2002, is
fraught with dangers… Placing the confiscated drugs, even if marked, inside the pocket of one
(1) of the arresting police officers is not the proper way of securing the seized drugs. For no
one would know what other things are inside his or her pockets and what could have come out
of the same (People vs. Leaño, G.R. No. 246461, July 28, 2020; People v. Dela Cruz, G.R. No.
205821, October 1, 2014).

NON-PRESENTATION OF THE POSEUR BUYER

Generally, the failure of the poseur-buyer to testify on the actual purchase is not fatal to
the prosecution’s cause. As long as there is proof that the sale actually took place, like the
testimony of the members of the arresting team, coupled with the presentation in court of the
corpus delicti as evidence, a conviction for illegal sale of shabu can be sustained (Cruz vs.
People, 578 SCRA 147, February 6, 2009).

However, in case “none of the members of the buy-bust team had directly witnessed the
transaction, if any, between the accused and the poseur buyer due to their being positioned at a
distance from the poseur buyer and the accused at the moment of the supposed transaction,
[then the presentation of the poseur-buyer becomes material]. “Given the legal

19
characterizations of the acts constituting the offense charged, the members of the buy-bust
team could not incriminate the [accused] by simply declaring that they had seen from their
positions the poseur buyer handing something to the [accused] who, in turn, gave something to
the poseur buyer. If the transaction was a sale, it was unwarranted to infer from such
testimonies of the members of the buy-bust team that what the poseur buyer handed over were
the marked ₱100.00 bills and that what the [accused] gave to the poseur buyer was the shabu
purchased.” (People vs. Andaya, G.R. No. 183700, October 13, 2014; People vs. Amin, G.R.
No. 215942, January 18, 2017). In People vs. Orteza, G.R. No. 173051 (161678), July 31,
2007, the poseur buyer was not also able to testify. In his stead, two (2) members of the back-
up team were presented. The Supreme Court ruled that “the testimony of the poseur-buyer, in
this case Ramos, was pivotal as only he could testify on what had really transpired during the
moment of the alleged sale of shabu. His non-presentation in this case was fatal, absent any
explanation for his non-appearance and reliable eyewitness who could testify in his place.”

Orteza cited People v. Uy where it was ruled that the non-presentation of the poseur-
buyer is fatal only if there is no other eyewitness to the illicit transaction. This doctrine was
reiterated in People v. Ambrosio. In both cases, however, not only were there other
eyewitnesses to the illegal sale, the non-presentation of the poseur-buyer was also satisfactorily
explained. In People v. Uy, the police officer who acted as the poseur-buyer at the time of the
trial was paralyzed and confined in a hospital due to gunshot wounds. In People v. Ambrosio,
the poseur-buyer was working on another buy-bust operation. The Court therein stated that to
require her to testify in open court would divulge her identity and expose her to danger
considering that there was another buy-bust operation going on.”

People vs. Cabrillos, G.R. No. 247657, June 8, 2020 likewise decreed that “the non-
presentation of the poseur buyer-confidential informant is fatal… The seven meter distance
between the police officers waiting for the pre-arranged signal from the poseur buyer and the
accused made it difficult for the police officers to see and to hear what exactly happening
between the accused and the poseur.”

NON-PRESENTATION OF THE BUY BUST MONEY - ITS EFFECT

Failure to present the buy-bust money is not fatal. The marked money used in the buy-
bust operation is not indispensable but merely corroborative in nature. In the prosecution for
the sale of dangerous drugs, the absence of marked money does not create a hiatus in the
evidence for the prosecution as long as the sale of dangerous drugs is adequately proven and
the drug subject of the transaction is presented before the court. Neither law nor jurisprudence
requires the presentation of any money used in the buy-bust operation. What is material to a
prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually
took place, coupled with the presentation in court of the corpus delicti as evidence (People vs.
Macud, G.R. No. 219175, December 14, 2017; People vs. Somoza, G.R. No. 197250, July 17,
2013; Cruz vs. People, G.R. No. 164580, February 6, 2009; People vs. Concepcion, et al, G.R.
No. 178876, June 27, 2008).

PRIOR SURVEILLANCE NOT NEEDED

20
 Settled is the rule that prior surveillance is not a prerequisite for the validity of an
entrapment operation. There is no textbook method of conducting buy-bust operations. The
police officers may decide that time is of the essence and dispense with the need of prior
surveillance. What is important is whether the speed of preparation compromised the rights of
the accused (People vs. Concepcion, et al, G.R. No. 178876, June 27, 2008; Cruz vs. People,
G.R. No. 164580, February 6, 2009).

ELECTED PUBLIC OFFICIAL AS WITNESS

There is no requirement under the law that the elected public official who should
witness the operation must be one of those elected in the same locality where the operation is
conducted. This is clear from the wordings of the law itself which says “any elected public
official” (People vs. Macud, G.R. No. 219175, December 14, 2017).

COORDINATION WITH PDEA

Section 86 of R.A. No. 9165 provides:

“Section 86. Transfer, Absorption, and Integration of All Operating Units on

Illegal Drugs into the PDEA and Transitory Provisions. – The Narcotics Group of
the PNP, the Narcotics Division of the NBI and the Customs Narcotics Interdiction
Unit are hereby abolished; however they shall continue with the performance of
their task as detail service with the PDEA, subject to screening, until such time that
the organizational structure of the Agency is fully operational and the number of
graduates of the PDEA Academy is sufficient to do the task themselves. x x x.

xxxx

Nothing in this Act shall mean a diminution of the investigative powers of

the NBI and the PNP on all other crimes as provided for in their respective organic
laws: Provided, however, That when the investigation being conducted by the NBI,
PNP or any ad hoc anti-drug task force is found to be a violation of any of the
provisions of this Act, the PDEA shall be the lead agency. The NBI, PNP or any of
the task force shall immediately transfer the same to the PDEA: Provided, further,
That the NBI, PNP and the Bureau of Customs shall maintain close coordination
with the PDEA on all drug related matters.

This does not mean, however, that prior coordination with the PDEA is a condition sine
qua-non for the legality of a buy bust operation (People vs. Amin, G.R. No. 215942, January
18, 2017; People vs. Balaquiot, G.R. No. 206366, August 13, 2014). In People vs. Balaquiot,
G.R. No. 206366, August 13, 2014, citing People v. Roa, the Supreme Court said “that prior
coordination with the PDEA is not a condition sine qua-non for the validity of every
entrapment operation conducted by police authorities… The “coordination with the PDEA is
not an indispensable requirement before police authorities may carry out a buy-bust operation.
While it is true that Section 86 of Republic Act No. 9165 requires the National Bureau of
Investigation, PNP and the Bureau of Customs to maintain “close coordination with the PDEA

21
on all drug related matters,” the provision does not, by so saying, make PDEA’s participation a
condition sine qua non for every buy-bust operation.

UNLAWFUL ACTS AND PENALTIES UNDER R.A. NO. 9165

Section 4. Importation of Dangerous Drugs and/or Controlled Precursors and

Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging
from Five hundred thousand pesos (P500,000.00) to Ten million pesos
(P10,000,000.00) shall be imposed upon any person, who, unless authorized by law,
shall import or bring into the Philippines any dangerous drug, regardless of the
quantity and purity involved, including any and all species of opium poppy or any part
thereof or substances derived therefrom even for floral, decorative and culinary
purposes.

The penalty of imprisonment ranging from twelve (12) years and one (1) day to
twenty (20) years and a fine ranging from One hundred thousand pesos
(P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon
any person, who, unless authorized by law, shall import any controlled precursor and
essential chemical.

The maximum penalty provided for under this Section shall be imposed upon
any person, who, unless authorized under this Act, shall import or bring into the
Philippines any dangerous drug and/or controlled precursor and essential chemical
through the use of a diplomatic passport, diplomatic facilities or any other means
involving his/her official status intended to facilitate the unlawful entry of the same. In
addition, the diplomatic passport shall be confiscated and canceled.

The maximum penalty provided for under this Section shall be imposed upon
any person, who organizes, manages or acts as a "financier" of any of the illegal
activities prescribed in this Section.

The penalty of twelve (12) years and one (1) day to twenty (20) years of
imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to
Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who
acts as a "protector/coddler" of any violator of the provisions under this Section.

NOTES

People vs. Chi Chan Liu, 746 SCRA 476, January 21, 2015 instructs that simply
because foreigners were caught in possession of dangerous drugs on board of a boat sailing in
Philippine waters does not mean that those drugs came from a foreign country. In this case,
Police Officers Lazaro Paglicawan and Isagani Yuzon received a radio message from the
Barangay Captain of Ambil Island that a suspicious looking boat was seen somewhere within
the vicinity of Ambil Island of Looc Occidental Mindoro. Immediately, the police officers
headed towards the specified location wherein they spotted two (2) boats anchored side by side.
They noticed one (1) person on board the fishing boat and two (2) on board the speed boat who

22
were transferring cargo from the former to the latter. As they moved closer to the area, the
fishing boat hurriedly sped away. They went towards the speed boat. On board the speed boat,
the officers found Chi Chan Liu and Hui Lao Chung with several transparent plastic bags
containing a white crystalline substance they instantly suspected to be methamphetamine
hydrochloride, otherwise known as “shabu.” Laboratory examination confirmed that indeed
those were shabu. Charged with importation of dangerous drugs, the Supreme Court said that
the Chinese nationals cannot be convicted of the crime of importation of dangerous drugs.
Importation is “the act of bringing goods and merchandise into a country from a foreign
country.” “Importation then, necessarily connotes the introduction of something into a certain
territory coming from an external source. Logically, if the article merely came from the same
territory, there cannot be any importation of the same.” In the instant case, the mere fact that
the accused were Chinese nationals as well as their penchant for making reference to China
where they could obtain money to bribe the apprehending officers does not necessarily mean
that the confiscated drugs came from China. The speedboat on which the accused were
apprehended was docked on the coast of Ambil Island in the Municipality of Looc, Occidental
Mindoro. Thus, it could have easily come from some other locality within the country, and not
necessarily from China or any foreign port.

However, the Chinese nationals can be convicted of the crime of possession of

dangerous drugs. The allegation of importation in the Information necessarily includes
possession.

Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution

and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five
hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall
be imposed upon any person, who, unless authorized by law, shall sell, trade,
administer, dispense, deliver, 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.

The penalty of imprisonment ranging from twelve (12) years and one (1) day to
twenty (20) years and a fine ranging from One hundred thousand pesos
(P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon
any person, who, unless authorized by law, shall 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.

If the sale, trading, administration, dispensation, delivery, distribution or

transportation of any dangerous drug and/or controlled precursor and essential
chemical transpires within one hundred (100) meters from the school, the maximum
penalty shall be imposed in every case.
For drug pushers who use minors or mentally incapacitated individuals as
runners, couriers and messengers, or in any other capacity directly connected to the

23
dangerous drugs and/or controlled precursors and essential chemical trade, the
maximum penalty shall be imposed in every case.

If the victim of the offense is a minor or a mentally incapacitated individual, or

should a dangerous drug and/or a controlled precursor and essential chemical
involved in any offense herein provided be the proximate cause of death of a victim
thereof, the maximum penalty provided for under this Section shall be imposed.

The maximum penalty provided for under this Section shall be imposed upon
any person who organizes, manages or acts as a "financier" of any of the illegal
activities prescribed in this Section.

The penalty of twelve (12) years and one (1) day to twenty (20) years of
imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to
Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who
acts as a "protector/coddler" of any violator of the provisions under this Section.

NOTES

The elements of the crime of illegal sale of drugs are: (1) the identity of the seller, the
object and the consideration; and (2) the delivery of the thing sold and the payment thereof.
Implicit in these elements is the identity and existence, coupled with the presentation to the
court of the traded prohibited substance, this object evidence being an integral part of the
corpus delicti of the crime of possession or selling of dangerous drug (People vs. Cervantes,
581 SCRA 762, 776, March 17, 2009; People vs. Caballero, 589 SCRA 277, June 16, 2009;
People vs. Dasigan, G.R. No. 206229, February 4, 2015; People vs. Miranda, G.R. No.
209338, June 29, 2015; People vs. Opiana, G.R. No. 200797, January 12, 2015; People vs.
Pasion, G.R. No. 203026, January 28, 2015; People vs. Rosauro, February 18, 2015; People
vs. Tapugay, February 11, 2015; People vs. Villar, 808 SCRA 407, November 9, 2016;
Tolentino vs. People, G.R. No. 227217, February 12, 2020 and People vs. Villalon, Jr., G.R.
No. 249412; March 15, 2021).

In People vs. Siu Ming Tat et al, G.R. No. 246577, July 13, 2020, the Anti-Illegal Drugs
Special Operations Task Force (AIDSOTF) of the Philippine National Police (PNP), acting on
the information of a confidential informant that he was able to arrange a drug deal with certain
persons (Tat and Lee), conducted a buy bust operation. Thus, on the appointed date and time,
the police operatives proceeded to Room 315 of a hotel. Upon reaching the room, they were
greeted by a Chinese-looking man, later identified as appellant Siu Ming Tat (Tat), who told
them to go inside. Inside the room, PO3 Ernesto Mabanglo (PO3 Mabanglo) was introduced to
appellant Tat by the confidential informant as the one who will buy the drugs. Appellant Lee
Yoong Heow (Lee) was also in the room seated on the bed. PO3 Mabanglo was then asked if
he had the money to which he answered in the affirmative. After that, appellant Tat then went
to the cabinet and got a travelling bag. He placed the bag on top of the bed and pulled out a
yellow plastic bag with Chinese characters. From the yellow plastic bag, appellant Tat took out
one (1) heat-sealed transparent plastic sachet containing 426.30 grams of white crystalline
substance. Appellant Tat then showed the sachet to PO3 Mabanglo, who told the former that “it

24
was good” and gave the money to appellant Lee. Immediately thereafter, PO3 Mabanglo
executed the pre-arranged signal. Police Inspector Michael Angelo Salmingo (PI Salmingo)
rushed to the scene and effected the arrest of appellant Lee while PO3 Mabanglo arrested
appellant Tat. The appellants were then apprised of their violation and constitutional rights.

The conviction of the accused for illegal sale of drugs was sustained by the Supreme
Court. “To secure a conviction for illegal sale of dangerous drugs under Section 5, Article II of
R.A. No. 9165, the prosecution must establish the following elements: (1) the identity of the
buyer and the seller, the object of the sale and its consideration; and (2) the delivery of the
thing sold and the payment therefor. What is important is that the sale transaction of drugs
actually took place and that the object of the transaction is properly presented as evidence in
court and is shown to be the same drugs seized from the accused. In the crime of illegal sale of
dangerous drugs, the delivery of the illicit drug to the poseur-buyer and the receipt by the seller
of the marked money consummate the illegal transaction. What matters is the proof that the
transaction or sale actually took place, coupled with the presentation in court of the prohibited
drug, the corpus delicti, as evidence… It is clear from the records of the case that appellants
Tat and Lee were caught in flagrante delicto of selling a dangerous drug, ephedrine, to PO3
Mabanglo on July 26, 2012. The appellants sold and delivered the plastic sachet
containing ephedrine to PO3 Mabanglo posing as buyer. There was an actual exchange of the
marked money and the plastic sachet containing ephedrine. Further, the appellants were
positively identified in open court by the prosecution witnesses as the persons who sold the
dangerous drugs to PO3 Mabanglo.

In People vs. De Dios, G.R. No. 243664, January 22, 2020, the members of the Tabaco
City Police Station were able to buy one (1) heat-sealed plastic sachet containing 0.024 gram
during a buy-bust operation against Jocel De Dios (De Dios). Immediately thereafter, the
seizing officer conducted the marking, inventory, and photography of the seized items in the
presence of media representative Rodel Brotamonte Brotamonte, Department of Justice (DOJ)
representative Romulo Barbacena, Barangay Official Elmer Gascon and De Dios at the place
of apprehension. The seized items were then brought to the crime laboratory, where after
examination, tested positive for methamphetamine hydrochloride, a dangerous drug. The
Supreme Court ruled that “the elements of Illegal Sale of Dangerous Drugs under Section 5,
Article II of RA 9165 are: (a) the identity of the buyer and the seller, the object, and the
consideration; and (b) the delivery of the thing sold and the payment.” Here, De Dios was
caught in flagrante delicto of selling shabu to the poseur-buyer, PO3 Benedict Codia, during a
legitimate buy-bust operation conducted by the members of the Tabaco City Police Station.”

In People vs. Opiana, G.R. No. 200797, January 12, 2015, the conviction of the
accused for illegal sale of dangerous drugs was upheld by the Supreme Court. On April 8,
2008, the Makati police officers and Makati Anti-Drug Abuse Council (MADAC) operatives
conducted an entrapment/buy-bust operation on Manolito Opiana (Opiana) who was reportedly
engaged in illegal drug trade in Brgy. Guadalupe Viejo, Makati City. MADAC operative
Sherwin Serrano (Serrano) acted as poseur-buyer. After having been introduced by the
informant as a “scorer” of shabu, Opiana and Serrano negotiated for the sale of P300.00 worth
of shabu. Serrano gave Opiana the P300 marked money and in exchange, Opiana handed to
Serrano a heat-sealed sachet containing white crystalline substance. After making the pre-

25
arranged signal, Opiana was apprehended and when bodily frisked, 19 heat-sealed sachets were
recovered from his possession. Laboratory examination revealed that all 20 heat-sealed sachets
yielded positive results for shabu. The Supreme Court held that the prosecution satisfactorily
established the following elements of violation of Section 5: “(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. What is material in a prosecution for illegal sale of dangerous drugs is the
proof that the transaction or sale actually took place, coupled with the presentation in court of
the corpus delicti or the illicit drug in evidence.”

In People vs. Nepomuceno, G.R. No. 194999, February 9, 2015, the Chief of the Drug
Enforcement Unit (DEU) of the Makati Philippine National Police (PNP) received a report
from a confidential informant (CI) that Gloria Nepomuceno (Nepomuceno) was selling shabu.
He thus formed a buy-bust team to entrap Nepomuceno composed of PO2 Vicente Barrameda
(PO2 Barrameda), who was designated as the poseur-buyer and others. The Chief of the DEU
conducted a briefing and provided the buy bust team with two 50-peso bills as marked money.
Meanwhile, PO2 Barrameda coordinated the buy-bust operation with the Philippine Drug
Enforcement Agency. On August 9, 2003, at around 2:00 p.m., the buy-bust team deployed
itself at the corner of Caton and Zobel Streets, Barangay La Paz, Makati City. The team
members positioned themselves in strategic locations while PO2 Barrameda and the CI
approached appellant. The CI introduced PO2 Barrameda to Nepomuceno as a buyer of shabu.
PO2 Barrameda told Nepomuceno that he needed P100.00 worth of shabu and gave her the
marked money as payment. Nepomuceno took out from her pocket and turned-over to PO2
Barrameda a small plastic sachet containing white crystalline substance. Upon receipt thereof,
PO2 Barrameda lighted a cigarette as the pre-arranged signal that the transaction had been
consummated. PO1 Santos rushed to the scene and recovered from the right hand of
Nepomuceno the buy-bust money. PO1 Barrameda marked the subject plastic sachet with the
initials “GPN.” Nepomuceno was then arrested and brought to the DEU of Makati where she
was turned over to the duty investigator for documentation. Thereafter, Nepomuceno and the
seized plastic sachet with its contents were taken to the PNP Crime Laboratory for drug testing
and laboratory examination, respectively. Specimen of the white crystalline taken from the
plastic sachet tested positive for shabu.

The Supreme Court held that it “is satisfied that the prosecution discharged its burden
in a prosecution for illegal sale of dangerous drugs, which are: “(1) the identity of the buyer
and the seller, the object and consideration; and, (2) the delivery of the thing sold and the
payment therefor.” This offense merely requires the consummation of the selling transaction,
which occurs the moment the buyer exchanges his money for the drugs of the seller. PO2
Barrameda, the police officer who acted as buyer, testified on the buy bust operation against
appellant and positively identified her as the seller of the seized shabu that was sold to him
for P100.00. PO1 Santos, another police officer and member of the buy-bust team,
corroborated the testimony of PO2 Barrameda. While they had not seen appellant prior to the
buy-bust operation, the CI readily identified and introduced her to PO2 Barrameda. In cases
involving the illegal sale of dangerous drugs, “credence should be given to the narration of the
incident by the prosecution witnesses, especially when they are police officers who are
presumed to have performed their duties in a regular manner, unless there is evidence to the
contrary. Moreover, in the absence of proof of motive to falsely impute such a serious crime

26
against the appellant, the presumption of regularity in the performance of official duty… shall
prevail over [accused’s] self-serving and uncorroborated denial.” Having been apprehended in
flagrante delicto, the police officers were not only authorized but were even duty-bound to
arrest her even without a warrant.

In People vs. Miranda, G.R. No. 209338, June 29, 2015, P/CI Manuel Chica (P/CI
Chica) formed a buy bust team after receiving a tip from a confidential informant that a certain
alias “Dawie” is actively engaged in the selling of shabu in Purok Roxas, Dau, Mabalacat,
Pampanga, The team was composed of Chairman Cruz and PO2 Richard Lambino (PO2
Lambino) and P/CI Chica himself. P/CI Chica was designated as the poseur-buyer. He prepared
the buy-bust money consisting of two (2) one hundred peso bills which he marked by placing a
dot on the forehead of the picture of the late President Manuel A. Roxas printed on the said
bills. At around 4:30 p.m. of the same date, the team proceeded to the target area. The members
of the team strategically positioned themselves around the area as P/CI Chica and the informant
approached alias “Dawie.” The informant introduced P/CI Chica to alias “Dawie” as the buyer
of shabu. Alias “Dawie” readily handed to P/CI Chica a plastic sachet containing suspected
shabu and in return, P/CI Chica paid alias “Dawie” the marked money. When P/CI Chica made
the pre-arranged signal, the other members of the team rushed to the scene. He then introduced
himself as a police officer to alias “Dawie.” Alias “Dawie” tried to flee, but Chairman Cruz
was able to grab him by his left hand and recover another plastic sachet of suspected shabu.
Then the police officers asked alias “Dawie” to empty his pockets and they recovered the
marked money from him.

The Supreme Court held that “conviction is proper in prosecutions involving illegal sale
of dangerous drugs if the following elements are present: (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
thereto.” “In this case, the prosecution duly established the identity of the buyer and the seller,
appellant being the seller and P/CI Chica as the poseur-buyer. The object of the transaction was
a sachet of methylamphetamine hydrochloride or shabu weighing approximately 0.0363 gram
and the consideration was the P200 marked money. Through the testimonial and documentary
evidence presented by the prosecution both the object and consideration have also been
sufficiently established. As to the delivery of the thing sold and the payment therefore, P/CI
Chica categorically testified that he caught appellant in flagrante delicto selling and delivering
the shabu during a buy-bust operation. He also personally handed to appellant the marked
money as payment for the same. Clearly, the aforementioned elements are present in this case.”
“It bears stressing that the sale of the illegal drugs in this case was brought about by a buy-bust
operation – a form of entrapment that is resorted to for trapping and capturing criminals. 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. Time and again, this Court has
ruled that a buy-bust operation is employed to trap and catch a malefactor in flagrante delicto.”

In People vs. Caballero, 589 SCRA 277, June 19, 2009, upon reaching Yvonne
Caballero’s residence, the “poseur buyer” knocked on Caballero’s door and introduced himself,
saying, “Ate Ybonne kung may item ka raw, itong kaibigan ko, gusto umiscor.” After the short
conversation, Caballero handed to the “poseur buyer” a sachet containing a white crystalline
substance while the latter gave the former a P100 marked bill. Thereafter, the poseur buyer

27
signaled his companions that the transaction had been consummated. Caballero was thereafter
arrested.

It was held that Caballero committed the crime of sale of illegal drugs. The elements of
this crime are: (1) the identity of the seller, the object and the consideration and (2) the delivery
of the thing sold and the payment thereof. Here, Caballero, as seller, handed to the poseur
buyer a sachet containing methamphetamine hydrochloride or shabu in exchange for P100
during a buy-bust operation. Testimonies of police officers who conducted the buy-bust
operations are generally accorded full faith and credit as they are presumed to have performed
their duties in a regular manner. This presumption can be overturned only if the accused is able
to prove that the officers acted with improper motives.

But in People vs. Yagao, G.R. No. 216725, February 18, 2019, the accused was
acquitted from illegal sale of marijuana because he was arrested before he was able to hand
over the marijuana to the poseur buyer. On 1 August 2006, PO2 Fred Yasay (PO2 Yasay)
received a tip from their confidential informant that a certain Rogelio Yagao (Yagao) was
selling illegal drugs in Zone 4, Bugo, Cagayan de Oro City. Upon the order of their superior, a
buy-bust team was organized composed of PO2 Yasay, PO2 Joel Deloso (PO2 Deloso) and
others. Around 5 p.m. in the afternoon of the same day, PO2 Yasay and the buy-bust team
proceeded to Zone 4, Bugo, Cagayan de Oro to conduct the buy-bust operation. It was agreed
that the confidential informant, PO2 Deloso and PO2 Yasay would act as the poseurs-buyers.
Upon their arrival at appellant’s residence, the confidential informant called upon the former
who was at the terrace of his (Yagao’s) house and asked “Kuha mi bai” (We will get). The
confidential informant then handed the buy bust money to Yagao. Then, Yagao took from the
right pocket of his trouser one (1) sachet containing dried marijuana leaves inside.
Immediately, police officers Yasay and Deloso held Yagao and arrested him.

The Supreme Court held that “in prosecuting the charge, the State bore the burden to
prove the following elements of the violation, namely: (a) the identities of the buyer and the
seller, the object of the sale, and the consideration; and (b) the delivery of the thing sold and its
payment. The delivery to the poseur-buyer of the dangerous drug by the accused as the seller,
and the receipt by the latter of the marked money consummated the illegal sale of the
dangerous drug during the buy-bust transaction. Without showing that the delivery of the
dangerous drug took place, the State’s evidence would not amount to proof of guilt beyond
reasonable doubt, for it was the delivery of the drug by the accused-appellant, coupled with the
presentation in court of the confiscated drug itself, or the corpus delicti, that would establish to
a moral certainty the commission of the violation.” Here, “PO2 Deloso and PO2 Yasay quickly
effected the arrest of (Yagao) just as soon as he had pulled out the marijuana from his pocket.
Necessarily, the seizure happened before he could hand the marijuana over to PO2 Deloso as
the poseur buyer. Under such circumstance, there was no sale because the delivery of the
dangerous drug to the poseur buyer had not yet transpired. Delivery as one of the essential
elements of illegal sale of dangerous drug under Section 5 of R.A. No. 9165 is defined as the
act of knowingly passing a dangerous drug to another, personally or otherwise, and by any
means, with or without consideration.”… “Indeed, in order to be successful, the buy-bust
operation must still involve the offender in a transaction in which the poseur buyer offered to
buy the drug, and the offender accepted the offer and delivered the drug in exchange for the

28
price agreed upon. This is precisely why the operation is aptly denominated as a “buy-bust.” In
this case, however, the operation was merely a “bust” in view of the absence of a sale.”

However, in People vs. Dasigan, G.R. No. 206229, February 4, 2015, the Supreme
Court convicted the accused with illegal possession of dangerous drugs although she was
acquitted from illegal sale of drugs because the accused was arrested before the buy bust
money could be delivered to the accused. The facts are as follows: On December 5, 2006, at
the Philippine Drug Enforcement Agency (PDEA) office in Baguio City, a male confidential
informant reported to Police Chief Inspector Luisito Meris that a certain alias “Amy” is
engaged in delivering Methamphetamine Hydrochloride, also known as “Shabu” within the
vicinity of the La Trinidad Trading Post. A buy bust team was formed to conduct the operation
against alias “Amy”. PO2 Arieltino Corpuz (PO2 Corpuz), SPO2 Cabily Agbayani and SPO1
Bernardo Ventura were tasked as arresting officers. The team leader, PCI Luisito Meris (PCI
Meris) then directed PO2 Corpuz and the confidential informant to conduct surveillance within
the vicinity of the La Trinidad Trading Post and look into the activities of alias “Amy”. On
December 6, 2006 at around 4:30 o’clock in the morning, a woman named “Amy” arrived and
the confidential informant met and talked to her before he called PO2 Corpuz. PO2 Corpuz
was introduced to “Amy” as the buyer of “shabu”. On December 8, 2006, PO2 Corpuz called
“Amy” and asked her regarding their transaction as he was willing to buy “shabu” worth two
thousand pesos (PHP 2,000.00). “Amy” answered and directed PO2 Corpuz to go to the road
leading to Bayabas, LaTrinidad and she would deliver the “shabu” there. The team proceeded
as directed and PO2 Corpuz, as the poseur-buyer with Php 2,000.00 in his possession,
positioned himself at the entrance of the road leading to Bayabas while the rest of the team
stayed at a place where they could see the transaction going on. Thirty (30) minutes later,
“Amy” arrived. She brought what appeared to be small transparent plastic sachets containing
white crystalline substance, picked out two (2) sachets and gave it to PO2 Corpuz. “Amy” then
demanded the payment of two thousand pesos. But PO2 Corpuz immediately held Amy’s right
hand and announced “Pulis ako!” PCI Meris then told “Amy” to empty her pockets. “Amy”
complied and PCI Meris saw her actually bringing out four (4) sealed sachets each containing a
white substance.

The Supreme Court held that “[t]he sale was not consummated as there was no receipt
of the consideration”. When asked, PO2 Corpuz said that he did not give the money to Amy.

“In People v. Hong Yeng E and Tsien Tsien Chua, where the marked money was also
shown to accused-appellant but it was not actually given to her as she was immediately arrested
when the shabu was handed over to the poseur-buyer, the Court held that it is material in illegal
sale of dangerous drugs that the sale actually took place, and what consummates the buy-bust
transaction is the delivery of the drugs to the poseur-buyer and, in turn, the seller’s receipt of
the marked money. While the parties may have agreed on the selling price of the shabu and
delivery of payment was intended, these do not prove consummated sale. Receipt of the
marked money, whether done before delivery of the drugs or after, is required.”

“Accused-appellant’s exoneration from the charge of illegal sale of dangerous or

prohibited drugs, however, does not spell freedom from all criminal liability as she may still be
convicted for illegal possession of dangerous drugs. It is settled that possession is necessarily

29
included in the sale of dangerous or prohibited drugs. Thus, although illegal sale of drugs was
not proven, accused appellant is certainly criminally liable for illegal possession of dangerous
or prohibited drugs in the total weight of 0.15 gram.”

People vs. Hilario, G.R. No. 210610, January 11, 2018 tells us that in illegal sale of
dangerous drugs done through a buy bust operation, the details of the operation from planning
to consummation of the sale must be painted clearly by the prosecution. If not, the accused
should be acquitted. In this case, PO1 Nemesio Brotonel de Sagun (PO1 de Sagun) testified
that on January 22, 2008, at around 11:00 in the evening, he was with PO2 Arnold Magpantay
(PO2 Magpantay) and PO1 Melvin Cabungcal in Sitio Bagong Barrio, Brgy. Maguihan,
Lemery, Batangas, to conduct surveillance and a buy-bust operation. POI de Sagun, in civilian
clothes, acted as poseur-buyer and was able to buy shabu for ₱500.00 from Marilou Hilario
(Hilario). Upon consummation of the sale, PO1 de Sagun personally arrested Hilario and
marked the ₱500.00-bill he paid Hilario and the shabu Hilario sold to him. After the arrest,
PO1 de Sagun brought Hilario to the Lemery Police Station and turned over the custody of
Hilario to the Investigator-On-Duty. PO1 de Sagun also claimed that he prepared an Inventory
of the Seized Items in the presence of “Ma'm Orlina” and Sims Garcia, representatives from the
Department of Justice (DOJ) and the media, respectively. PO1 de Sagun then brought the
seized items to the Batangas Provincial Crime Laboratory Office for examination, and
according to him, the submitted specimen tested positive for shabu.

The Supreme Court held that “PO1 de Sagun's testimony - consisting of generalizations
which lacked material details, riddled with inconsistencies, and uncorroborated - failed to
establish the elements of the offense charged with proof beyond reasonable doubt.

PO1 de Sagun described the alleged buy-bust operation only in general terms, thus:

“Q. Will you please tell the Honorable Court why did your group arrest accused
Marilou Hilario on January 22, 2008 at about 11 o'clock in the evening?
A. Through the buy-bust operation we conducted I was able to buy shabu from her, sir.

Q Alright in other words you pretended yourself to buy shabu. Were you able to
buy shabu from the said accused?
A. Yes, sir.

Q. How much shabu did you buy [from] Marilou Hilario?

A. Five hundred (₱500.00) pesos only, sir.

Q. After buying shabu from the accused in the amount of five hundred pesos
(₱500.00), what happened next?
A. We immediately arrested the person, sir.

Q. Were you in uniform on that time when you conducted the buybust operation?
A. No sir, we were in civilian.

Q. So after buying shabu you arrested the accused?

30
 A. Yes, sir.

Q. Were you alone or together with other police officers in arresting the accused?
A. I was with PO1 Cabungcal, sir.

Q. Who actually among you arrested accused Marilou Hilario?

A. I, sir.”

“It’s a generic narrative of any buy-bust operation, offering no distinctive detail except
for Hilario’s name as alleged seller. PO1 de Sagun failed to describe how he came to know that
Hilario was selling shabu; where Hilario was and what she was doing that time; how he
approached her and asked to buy shabu from her; how they came to agree on the purchase price
for the shabu; where Hilario got the sachet of shabu she handed to him; and what his pre-
arranged signal was to show the other police officers that the sale had been consummated and
Hilario could already be arrested - details which police officers who carried out legit buy-bust
operations should be able to provide readily and completely.”

“So according to PO1 de Sagun, he and his fellow police officers conducted a buy-bust
operation in Brgy. Maguihan based on information from unnamed source/s that selling of drugs
was rampant in the area; they prepared a pre-operation report which was not produced in court;
they went to Brgy. Maguihan without a specific target/subject; they did not conduct any
surveillance prior to the buy-bust operation on January 22, 2008; and they did not know Hilario
or Guadayo prior to the buy-bust operation and the arrest of the two. How then were the police
officers able to identify Hilario or Guadayo, from all the other residents of Brgy. Maguihan, as
the ones selling drugs in Brgy. Maguihan and who would be the subject of their buy-bust
operation?”

“The lack of specific details on the planning and conduct of the buy bust operation on
January 22, 2008 in Brgy. Maguihan casts serious doubts that it actually took place and/or that
the police officers carried out the same in the regular performance of their official duties.

In the case at bar, “the prosecution’s evidence about the buy-bust operation is
incomplete. The confidential informant who had sole knowledge of how the alleged illegal sale
of shabu started and how it was perfected was not presented as a witness. His testimony was
given instead by SPO1 Gonzales who had no personal knowledge of the same. On this score,
SPOl Gonzales’ testimony is hearsay and possesses no probative value unless it can be shown
that the same falls within the exception to the hearsay rule. To impart probative value to these
hearsay statements and convict the appellant solely on this basis would be to render nugatory
his constitutional right to confront the witness against him, in this case the informant, and to
examine him for his truthfulness. As the prosecution failed to prove all the material details of
the buy-bust operation, its claim that there was a valid entrapment of the appellants must fail.”

DELIVERY OF DANGEROUS DRUGS

Section 5 punishes not only sale but also delivery of dangerous drugs. In delivery of
dangerous drugs, consideration is not an element. This much was said in the following cases:

31
 1. People vs. Maralit, G.R. No. 232381, August 1, 2018. Following his receipt of an
information that a certain “RAM” was a dealer of marijuana, IA3 Dexter Asayco called for a
briefing regarding a planned entrapment operation against “RAM”. IO1 Efren Esmin (IO1
Esmin) was tasked to contact “RAM”. Through text messages, “RAM” agreed to deliver the
two (2) bricks of marijuana for Php5,300.00 each. They also agreed to meet at Barangay
Damortis, Sto. Tomas, La Union at 6:00 p.m. that day, to complete the transaction. IO1 Esmin
and PO2 Froilan Caalim (PO2 Caalim) were designated as the arresting officers, while the rest
of the team were tasked to secure the area. After the briefing, the team proceeded to Sto.
Tomas, La Union Police Station using a private vehicle. The team left the police station at
around 4:30 p.m. and arrived at the target area by 5:00 p.m. Upon their arrival, the members of
the team surveyed the area and positioned themselves according to the plan. At about 5:30
p.m., IO1 Esmin received a text message from “RAM” telling him that he was on his way
aboard a bus, and identified a certain store as their meeting place. IO1 Esmin then waited for
“RAM” outside the said store, while PO2 Caalim positioned himself across the street. At
around 6:30 p.m., a man that matched the physical description of “RAM” approached IO1
Esmin. The man was holding a brown paper bag and he asked IO1 Esmin to confirm that he
was the man from Tarlac. When IO1 Esmin answered in the affirmative, the man handed over
the brown paper bag to him. IO1 Esmin opened the brown paper bag and inspected the
contents. He found a white plastic bag inside the brown paper bag, which when opened,
revealed two (2) bricks of marijuana. When IO1 Esmin found that the brown paper bag
contained substances suspected to be marijuana, he arrested the man later identified as accused
Maralit, and informed him of his constitutional rights. In the meantime, the other team
members contacted two (2) barangay officials and a media representative to witness the
marking and inventory of the illegal drugs. They were unable to obtain the presence of a
Department of Justice (DOJ) representative allegedly because the entrapment operation ended
after office hours, and there was no available DOJ representative beyond this time.

The Supreme Court ruled that “[t]he Information against Maralit charged him with the
violation of Section 5, Article II of R.A. No. 9165. It further alleged that Maralit “willfully,
unlawfully, and knowingly traded, transported, delivered and gave away two (2) bricks
of marijuana” to IO1 Esmin. Maralit alleged that in order to be convicted under this provision,
the prosecution should have established the consideration for his supposed sale of
the marijuana bricks… While an accused charged with the violation of this provision is usually
caught in the act of selling illegal drugs, Section 5, Article II of R.A. No. 9165 also punishes
the trade, delivery, distribution, and giving away of any dangerous drug to another. Section 3,
Article I of R.A. No. 9165 defines the punishable acts of “deliver” and “trading” as follows:

(k) Deliver. - Any act of knowingly passing a dangerous drug to another, personally
or otherwise, and by any means, with or without consideration.

xxxx

(jj) Trading. - 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,

32
 internet, instant messengers and chat rooms or acting as a broker in any of such
transactions whether for money or any other consideration in violation of this
Act.

Clearly, the presence (or absence) of consideration in exchange for the delivery of
dangerous drugs is not material when an accused is charged with committing the other acts
punishable under Section 5, Article II of R.A. No. 9165. The act of giving away, transporting,
or delivering the two (2) bricks of marijuana is already a punishable act in itself.

In People v. De la Cruz, the Court held that the presentation of the marked money, as
well as the fact that the money was paid in exchange for the delivery of dangerous drugs, were
unnecessary to consummate the crime, thus:

“[E]ven if the money given to De la Cruz was not presented in court, the same would
not militate against the People’s case. In fact, there was even no need to prove that the marked
money was handed to the appellants in payment of the goods. The crime could have been
consummated by the mere delivery of the prohibited drugs. What the law proscribes is not only
the act of selling but also, albeit not limited to, the act of delivering. In the latter case, the act
of knowingly passing a dangerous drug to another personally or otherwise, and by any
means, with or without consideration, consummates the offense.”

“As applied in the present case, the prosecution correctly charged Maralit with the
violation of Section 5, Article II of R.A. No. 9165. Maralit could not be accused of the illegal
sale of dangerous drugs because the transaction was not consummated prior to his arrest-there
being no money taken in return for the marijuana bricks. This notwithstanding, his mere act of
delivering and conveying these marijuana bricks to IO1 Esmin already constitutes a violation
of Section 5, Article II of R.A. No. 9165.”

“It was therefore unnecessary for the prosecution to present the money used in the
entrapment operation in order to prove Maralit’s guilt beyond reasonable doubt. In the same
manner, neither may Maralit disprove the fact of delivery by simply pointing out that there was
no consideration received in exchange for the dangerous drugs.”

2. People vs. Alacdis, et al, G.R. No. 220022, June 19, 2017, the Supreme Court
reversed the trial court’s verdict finding the accused guilty of illegal sale of drugs. Instead, it
convicted the accused of delivery of dangerous drugs. Sometime in the first week of April
2008, SP04 Marquez Madlon from the Itogon, Benguet Municipal Police Office, received an
information from a confidential informant that Lingbanan and Alacdis were engaged in the
illegal sale of drugs in the region. On April 21, 2008, SP02 Cabily Agbayani (SP02 Agbayani)
and the confidential informant met Domingo Lingbanan (Lingbanan) and Pepito Anatil Alacdis
(Alacdis) at Kinudayan Restaurant, Kilometer 6, La Trinidad, Benguet. The confidential
informant introduced SP02 Agbayani as a prospective big-time buyer from Tarlac. SP02
Agbayani offered to buy two (2) kilos of marijuana to test the quality and purity of the
marijuana, which Lingbanan and Alacdis agreed to. However, since they did not have with
them the stocks at that time, they agreed to keep in touch. On May 3, 2008, Lingbanan and
Alacdis contacted SP02 Agbayani and informed him that he can pick up the two (2) kilos of

33
marijuana in Baguio City. SP02 Agbayani paid Php4,000 for the two (2) kilos of marijuana at
the covered court of the Baguio State University. Before leaving, SP02 Agbayani told
Lingbanan and Alacdis that he would buy more marijuana if the two (2) kilos turned out to be
of good quality. The following day, Alacdis called SP02 Agbayani and asked if the quality of
the marijuana was up to his standard. SP02 Agbayani said it was, and offered to buy 110 kilos
of marijuana for Php150,000. Lingbanan and Alacdis counter-offered to deliver only 107 kilos
of marijuana for the said amount, to which SP02 Agbayani agreed. On May 5, 2008,
Lingbanan contacted SP02 Agbayani to ask if he was willing to come to Baguio City to pick up
the 107 kilos of marijuana. SP02 Agbayani agreed and informed PCI Edgar Apalla, who
formed a buy-bust team as back-up. On May 6, 2008, SP02 Agbayani received a message from
Lingbanan and Alacdis at around 10 o’clock in the morning that they were sending Wilton
Alacdis (Wilton) to deliver the marijuana. In a few minutes, Wilton arrived, and was
recognized by the confidential informant as the brother of Alacdis. The confidential informant
approached him and again introduced SP02 Agbayani as the big-time buyer of marijuana from
Tarlac City. Wilton told them that he had to go to La Trinidad, Benguet to pick up the
marijuana and would be back within an hour. At around 11 o’clock in the morning, Lingbanan
called SP02 Agbayani and told him that the stocks of marijuana were inside a taxi and were
already on its way to Rizal Park. Wilton arrived and informed SP02 Agbayani that the
marijuana was still inside the taxi. SP02 Agbayani asked to be shown the goods first before he
gives the money. Wilton instructed the taxi driver to open the back of the taxi where several
cartons were placed. SP02 Agbayani could smell the marijuana. Wilton opened one (1) carton
in front of SP02 Agbayani who saw several marijuana bricks inside. SP02 Agbayani gave the
pre-arranged signal by removing his bull cap and the back-up team rushed to the scene and
arrested the accused-appellant and the taxi driver, Danny Sison. The police confiscated five (5)
cartons containing several bricks of marijuana and decided to bring the same to the PDEA-
CAR Office for marking and inventory considering its volume.

The Supreme Court held that “[i]n the crime of illegal sale of dangerous drugs, the
delivery of the illicit drug to the poseur-buyer and the receipt by the seller of the marked
money consummate the illegal transaction. Inarguably, consideration/payment is one of the
essential elements of illegal sale of dangerous drugs, without which, accused-appellant’s
conviction for said crime cannot stand.

In this case, the sale of the dangerous drugs cannot be said to have been consummated
because the accused-appellant did not receive consideration. He was arrested immediately after
the box containing the marijuana bricks were opened for SP02 Agbayani.

Be that as it may, accused-appellant is not absolved of criminal liability and may still be
held liable under Section 5, Article II of RA 9165 for the delivery and transport of marijuana.

Section 5, Article II of RA 9165 outlines the various unlawful acts that are punishable
under the said act:

Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and

Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. -
The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos

34
(P500,000.00) to Ten million pesos (Pl0,000,000.00) shall be imposed upon any person, who,
unless authorized by law, shall sell, trade, administer, dispense, deliver, 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.

The unlawful act of “delivery” is defined under Section 3, Article I of RA 9165, as

follows:

(k) Deliver. - Any act of knowingly passing a dangerous drug to another,

personally or otherwise, and by any means, with or without consideration.

To sustain a conviction for the illegal delivery of dangerous drugs, it must be proven that:
(1) the accused passed on possession of a dangerous drug to another, personally or otherwise,
and by any means; (2) such delivery is not authorized by law; and (3) the accused knowingly
made the delivery. Worthy of note is that the delivery may be committed even without
consideration.”

All these elements are present in this case.

3. People vs. Maongco & Bandali, G.R. No. 196966, October 23, 2013, the Supreme
Court likewise reversed the trial court and instead convicted the accused with delivery of
dangerous drugs. Based on a tip from a confidential informant, the Station Anti-Illegal Drugs
of the Navotas City Police conducted a special operation on June 18, 2004, which resulted in
the arrest of a certain Alvin Carpio (Carpio) for illegal possession of dangerous drugs and
seizure from Carpio’s possession of 15 heat-sealed plastic sachets containing shabu. When
questioned by the police, Carpio admitted that the shabu came from accused-appellant Michael
Maongco (Maongco). Consequently, the police planned an operation to apprehend accused-
appellant Maongco and formed a team for this purpose, composed of PO1 Dominador Arugay
(PO1 Arugay), PO2 Vener Ong (PO2 Ong), PO2 Geoffrey Huertas (PO2 Huertas), and PO1
Jesus del Fierro (PO1 Del Fierro).

On June 19, 2004, after coordination with the Philippine Drug Enforcement Agency
(PDEA), the police team was briefed about the operation. The police team allowed Carpio to
talk to accused-appellant Maongco on the cellphone to arrange for a sale transaction of shabu.
At around 10:30 in the morning, the police team, accompanied and guided by Carpio,
proceeded to the vicinity of Quezon corner Roces Avenues in Quezon City frequented by
accused-appellant Maongco. PO1 Arugay, PO2 Ong, and Carpio rode a taxi, while PO1 Del
Fierro and PO2 Huertas followed in an owner-type jeep. Carpio spotted accused-appellant
Maongco at a waiting shed and pointed out the latter to the police. PO2 Arugay alighted from
the taxi and approached accused-appellant Maongco. PO2 Arugay introduced himself to
accused-appellant Maongco as Carpio’s cousin, and claimed that Carpio was sick and could not
be there personally. PO2 Arugay then asked from accused-appellant Maongco for Carpio’s
order of “dalawang bulto.” Accused-appellant Maongco drew out from his pocket a sachet of
shabu and showed it to PO2 Arugay. When PO2 Arugay got hold of the sachet of shabu , he

35
immediately revealed that he was a police officer, arrested accused-appellant Maongco, and
apprised the latter of his constitutional rights.

When the police team questioned accused-appellant Maongco as to the other “bulto” of
shabu Carpio had ordered, he disclosed that the same was in the possession of accused-
appellant Phans Bandali (Bandali), who was then at Jollibee Pantranco branch along Quezon
Avenue. The police team, with Carpio and accused-appellant Maongco, went to the said
restaurant where accused-appellant Maongco identified accused-appellant Bandali to the police
team as the one wearing a blue shirt. PO2 Ong approached accused-appellant Bandali and
demanded from the latter the other half of the drugs ordered. Accused-appellant Bandali
voluntarily handed over a sachet of shabu to PO2 Ong. Thereafter, PO2 Ong apprised accused-
appellant Bandali of his constitutional rights and arrested him.

In the case of accused-appellant Maongco, the Supreme Court found that the Regional
Trial Court and the Court of Appeals both erred in convicting him in Criminal Case No. Q-04-
127731 for the illegal sale of shabu under Article II, Section 5 of Republic Act No. 9165. The
evidence on record does not support accused-appellant Maongco’s conviction for said crime,
especially considering the following answers of prosecution witness PO1 Arugay during the
latter’s cross-examination, practically admitting the lack of consideration/payment for the
sachet of shabu:

Q. What did you tell Michael Maongco?

A. I introduced myself as the cousin of Alvin, sir.

Q. After that, you immediately arrested him?

A. Yes, sir. I first asked my order of shabu.

Q. In your affidavit, you testified that you asked one “bulto” of shabu?
A. More or less five grams of shabu, sir.

Q. Did the accused ask any in exchange of that shabu?

A. No, sir.”

Inarguably, consideration/payment is one of the essential elements of illegal sale of

dangerous drugs, without which, accused-appellant Maongco’s conviction for said crime
cannot stand. Nonetheless, accused-appellant Maongco is still not absolved of criminal
liability.

A review of the Information in Criminal Case No. Q-04-127731 readily reveals that
accused-appellant Maongco was not actually charged with illegal sale of shabu. Said
Information specifically alleged that accused-appellant Maongco “willfully and unlawfully
dispensed, delivered, transported, distributed or acted as broker” in the transaction involving
4.50 grams of shabu”. These acts are likewise punishable under Article II, Section 5 of
Republic Act No. 9165.

Article II, Section 5 of Republic Act No. 9165 provides:

36
 SECTION 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution
and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals. – The penalty of life imprisonment to death and a fine ranging from
Five hundred thousand pesos (₱500,000.00) to Ten million pesos (₱10,000,000.00)
shall be imposed upon any person, who, unless authorized by law, shall sell, trade,
administer, dispense, deliver, 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.

Several of the acts enumerated in the foregoing provision have been explicitly defined
under Article I, Section 3 of the same statute, viz:

Section 3. Definitions. As used in this Act, the following terms shall mean:

(a) Administer. – 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.

xxxx

(k) Deliver. – Any act of knowingly passing a dangerous drug to another,

personally or otherwise, and by any means, with or without consideration.

xxxx

(m) Dispense. – Any act of giving away, selling or distributing medicine or any
dangerous drug with or without the use of prescription.

xxxx

(ii) Sell. – Any act of giving away any dangerous drug and/or controlled precursor
and essential chemical whether for money or any other consideration.

(jj) Trading. – 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, e-mail, mobile or landlines, two-way radios,
internet, instant messengers and chat rooms or acting as a broker in any of such
transactions whether for money or any other consideration in violation of this Act.

As for the illegal delivery of dangerous drugs, it must be proven that (1) the accused
passed on possession of a dangerous drug to another, personally or otherwise, and by any

37
means; (2) such delivery is not authorized by law; and (3) the accused knowingly made the
delivery. Worthy of note is that the delivery may be committed even without consideration.

4. People vs. Enriquez, 281 SCRA 103, October 23, 1997. The facts of this case are as
follows: Upon a tip, a buy-bust team went to the place where the suspect can be found. They
met Wilfredo Rosales (Rosales), the accused. Pat. Shirley Maramot, as poseur-buyer, and
Rosales proceeded to the house of Ernesto Enriquez (Enriquez). Enriquez asked the poseur
buyer “dala mo ba ang pera?” The poseur-buyer took out from her pocket the bundle of the
marked money and showed it to Enriquez. Thereafter, the poseur-buyer and Rosales who was
carrying a plastic bag exit through the back door. When the poseur-buyer and Rosales reached
a nearby waiting shed, the poseur-buyer announced that she was a policewoman. Sgt. Pedro
Cerrillo (Sgt. Cerillo), companion of Pat. Maramot, held Rosales and took his bag. Sgt. Cerrillo
opened the sack, and inside it was another sack containing marijuana wrapped in plastic.
Charged, Rosales argued that to sustain a conviction for the crime of selling marijuana, the sale
must be clearly established which, he asserted, had not happened at all.

Rosales is not correct. The Supreme Court held that under Section 4, (now Section 5)
of Article II of R.A. No. 6425, (now R.A. No. 9165), the law penalizes not only the sale but
also the delivery of prohibited drugs. The law defines the word “deliver” as a person’s act of
knowingly passing a dangerous drug to another personally or otherwise, and by any manner
with or without consideration. Delivery is a punishable act by itself.

TRANSPORTATION OF DANGEROUS DRUGS

In People vs. Morilla, et al, 715 SCRA 452, February 5, 2014, two (2) vehicles, the
Starex van driven by Mayor Ronnie Mitra (Mayor Mitra) and the ambulance driven by Javier
Morilla (Morilla), left Infanta, Quezon, en route to Manila. The Starex van which was ahead of
the ambulance was able to pass the checkpoint set up by the police officers. However, the
ambulance driven by Morilla was stopped by police officers. Through the untinted window,
one of the police officers noticed several sacks inside the van. Upon inquiry of the contents,
Morilla replied that the sacks contained narra wooden tiles. Unconvinced, the police officers
requested Morilla to open the rear door of the car for further inspection. When it was opened,
the operatives noticed that white crystalline granules were scattered on the floor, prompting
them to request Morilla to open the sacks. At this moment, Morilla told the police officers that
he was with Mayor Mitra in an attempt to persuade them to let him pass. His request was
rejected by the police officers and upon inspection, the contents of the sacks turned out to be
sacks of methamphetamine hydrochloride. This discovery prompted the operatives to chase the
Starex van of Mayor Mitra. The police officers were able to overtake the van and Mayor Mitra
was asked to stop. They then inquired if the Mayor knew Morilla. On plain view, the operatives
noticed that his van was also loaded with sacks like the ones found in the ambulance. Thus,
Mayor Mitra was also requested to open the door of the vehicle for inspection. At this instance,
Mayor Mitra offered to settle the matter but the same was rejected. Upon examination, the
contents of the sacks were likewise found to contain sacks of methamphetamine hydrochloride.

The Supreme Court held that Morilla and Mayor Mitra were caught in flagrante delicto
in the act of transporting the dangerous drugs on board their vehicles. “Transport” as used

38
under the Dangerous Drugs Act means “to carry or convey from one place to another.” It was
well established during trial that Morilla was driving the ambulance following the lead of
Mayor Mitra, who was driving a Starex van going to Manila. The very act of transporting
methamphetamine hydrochloride is malum prohibitum since it is punished as an offense under
a special law. The fact of transportation of the sacks containing dangerous drugs need not be
accompanied by proof of criminal intent, motive or knowledge… In a similar case of People v.
Libnao, this Court upheld the conviction for illegal transportation of marijuana of Libnao and
Nunga, who were caught carrying a bag full of marijuana leaves when they were flagged down
on board a passing tricycle at a checkpoint… The totality of the facts leads to a conclusion that
Morilla conspired with Mayor Mitra in a common desire to transport dangerous drugs. Both
their vehicles were loaded with several sacks of dangerous drugs and were on convoy from
Quezon to Manila… If indeed Morilla was not involved in conspiracy with Mayor Mitra, he
would not have told the police officers that he was with the Mayor.”

(Note: Originally, under Section 15 of Republic Act No. 6425, the penalty for illegal
transportation of methamphetamine hydrochloride was imprisonment ranging from six (6)
years and one (1) day to twelve (12) years and a fine ranging from six thousand pesos (Php
6,000) to twelve thousand pesos (Php 12,000). Pursuant to Presidential Decree No. 1683, the
penalty was amended to life imprisonment to death and a fine ranging from twenty thousand
pesos (Php 20,000) to thirty thousand pesos (Php 30,000). The penalty was further amended in
Republic Act No. 7659, where the penalty was changed to reclusion perpetua to death and a
fine ranging from five hundred thousand pesos (Php 500,000) to ten million pesos (Php
10,000,000). Reclusion perpetua entails imprisonment for at least thirty (30) years after which
the convict becomes eligible for pardon. It also carries with it accessory penalties, namely:
perpetual special disqualification, etc. Life imprisonment, on the other hand, does not appear to
have any definite extent or duration and carries no accessory penalties. Reclusion perpetua is
lighter than life imprisonment. But Section 5, Republic Act No. 9165 or the Comprehensive
Dangerous Drugs Act of 2002 restored the penalty from life imprisonment to death).

In People vs. Laba, G.R. No. 199938, January 28, 2013, Camaloding Laba (Laba)
arrived at the Manila Domestic Airport in Pasay City on July 18, 2005 at 10:45 o’clock in the
morning to take his flight bound for Davao City. When he approached the initial check-in area,
Mark Anthony Villocillo (Villocillo), a frisker assigned thereat, physically searched the person
of Laba and suspected that the latter’s oversized white rubber shoes seemed to contain what felt
like rice. Upon inspection of the rubber shoes, he discovered three (3) plastic sachets
containing shabu– two (2) plastic sachets were inside the left shoe while one (1) was inside the
right shoe.

The Supreme Court sustained Laba’s conviction for transportation of illegal drugs.
“Transport” as used under the Dangerous Drugs Act is defined to mean “to carry or convey
from one place to another.” The essential element of the charge is the movement of the
dangerous drug from one place to another. In this case, Laba was apprehended inside the
airport, as he was intending to board his flight bound for Davao City with a substantial amount
or 196.63 grams of methylamphetamine hydrochloride or shabu in his possession, concealed in
separate plastic bags inside his oversized Spicer rubber shoes. While it may be argued that
Laba was yet to board the aircraft or travel some distance with the illegal drugs in his

39
possession, it cannot be denied that his presence at the airport at that particular instance was for
the purpose of transporting or moving the dangerous drugs from one place to another…
Moreover, it may be reasonably inferred from the deliberations of the Congress that if a person
is found to have more than five (5) grams of shabu in his possession, then his purpose in
carrying them is to dispose, traffic, or sell it.”

In People vs. Lo Ho Wing, et al, G.R. No. 88017, January 21, 1991, Peter Lo (Lo) was
convicted of transportation of illegal drugs. Lo and Reynaldo Tia (Tia), a deep penetration
agent, left Manila for China to buy drugs. The following day, they returned to Manila. Lo and
Tia boarded a taxicab after putting their luggage inside the back compartment of the vehicle.
Lim Cheng Huat (Lim) followed in another taxi cab. Upon seeing Lo and Tia leave the airport,
the operatives who first spotted them followed them. Along Imelda Avenue, the car of the
operatives overtook the taxicab ridden by Lo and Tia and cut into its path forcing the taxi
driver to stop his vehicle. Meanwhile, the other taxicab carrying Lim sped away in an attempt
to escape. The operatives disembarked from their car, approached the taxicab, and asked the
driver to open the baggage compartment. Three (3) pieces of luggage were retrieved from the
back compartment of the vehicle. The operatives requested from the suspects permission to
search their luggage. A tin can of tea was taken out of the red traveling bag owned by Lo. Sgt.
Roberto Cayabyab, one of the operatives, pried the lid open, pulled out a paper tea bag from
the can and pressed it in the middle to feel its contents. Some crystalline white powder
resembling crushed alum came out of the bag. The sergeant then opened the tea bag and
examined its contents more closely. Suspecting the crystalline powder to be a dangerous drug,
he had the three (3) traveling bags opened for inspection. From the red traveling bag, a total of
six (6) tin cans were found, including the one previously opened. Tia and Lo were taken to the
Criminal Investigation Service (CIS) Headquarters in Quezon City for questioning. Meanwhile,
the second taxicab was eventually overtaken by two (2) other operatives in Retiro Street,
Quezon City. Lim was likewise apprehended and brought to the CIS Headquarters for
interrogation. Tests conducted on a sample of the crystalline powder inside the tea bag yielded
a positive result that the specimen submitted was methamphetamine. Samples from each of the
fifty-six (56) tea bags were similarly tested. The tests were also positive for methamphetamine.

Lo argues that he cannot be convicted of “delivery” because the term connotes a source
and a recipient, the latter being absent under the facts of the case. It is also argued that
“dispatching” cannot apply either since appellant never sent off or disposed of drugs. As for
“transporting,” appellant contends that he cannot also be held liable therefor because the act of
transporting necessarily requires a point of destination, which again is non-existent under the
given facts.

The Supreme Court said that “[t]he contentions are futile attempts to strain the meaning
of the operative acts of which appellant and his co-accused were charged in relation to the facts
of the case. There is no doubt that law enforcers caught appellant and his co-accused in
flagrante delicto of transporting a prohibited drug. The term “transport” is defined as “to carry
or convey from one place to another.” The operative words in the definition are “to carry or
convey.” The fact that there is actual conveyance suffices to support a finding that the act of
transporting was committed. It is immaterial whether or not the place of destination is reached.
Furthermore, the argument of appellant gives rise to the illogical conclusion that he and his co-

40
accused did not intend to bring the methamphetamine anywhere, i.e. they had no place of
destination.

The situation in the instant case is one where the transport of a prohibited drug was
interrupted by the search and arrest of the accused. Interruption necessarily infers that an act
had already been commenced. Otherwise, there would be nothing to interrupt.

Moreover, the act of transporting a prohibited drug is a malum prohibitum because it is

punished as an offense under a special law. It is a wrong because it is prohibited by law.
Without the law punishing the act, it cannot be considered a wrong. As such, the mere
commission of said act is what constitutes the offense punished and suffices to validly charge
and convict an individual caught committing the act so punished, regardless of criminal intent.”

Section 6. Maintenance of a Den, Dive or Resort. - The penalty of

life imprisonment to death and a fine ranging from Five hundred thousand
pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be
imposed upon any person or group of persons who shall maintain a den,
dive or resort where any dangerous drug is used or sold in any form.

The penalty of imprisonment ranging from twelve (12) years and

one (1) day to twenty (20) years and a fine ranging from One hundred
thousand pesos (P100,000.00) to Five hundred thousand pesos
(P500,000.00) shall be imposed upon any person or group of persons
who shall maintain a den, dive, or resort where any controlled precursor
and essential chemical is used or sold in any form.

The maximum penalty provided for under this Section shall be

imposed in every case where any dangerous drug is administered,
delivered or sold to a minor who is allowed to use the same in such a
place.

Should any dangerous drug be the proximate cause of the death of

a person using the same in such den, dive or resort, the penalty of death
and a fine ranging from One million (P1,000,000.00) to Fifteen million
pesos (P15,000,000.00) shall be imposed on the maintainer, owner
and/or operator.

If such den, dive or resort is owned by a third person, the same shall
be confiscated and escheated in favor of the government: Provided, That
the criminal complaint shall specifically allege that such place is
intentionally used in the furtherance of the crime: Provided, further, That
41
the prosecution shall prove such intent on the part of the owner to use the
property for such purpose: Provided, finally, That the owner shall be
included as an accused in the criminal complaint.

The maximum penalty provided for under this Section shall be

imposed upon any person who organizes, manages or acts as a
"financier" of any of the illegal activities prescribed in this Section.

The penalty of twelve (12) years and one (1) day to twenty (20)
years of imprisonment and a fine ranging from One hundred thousand
pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall
be imposed upon any person, who acts as a "protector/coddler" of any
violator of the provisions under this Section.

NOTES

A drug den is a lair or hideaway where prohibited or regulated drugs are used in any
form or are found. Its existence may be proved not only by direct evidence but may also be
established by proof of facts and circumstances, including evidence of the general reputation of
the house, or its general reputation among police officers (People vs. Andanar and Garbo, G.R.
No. 246284, June 16, 2021; People vs. Rom, G.R. No. 198452, February 19, 2014).

The offense of illegal maintenance of a drug den under Section 6 of R.A. No. 9165,
requires the following elements: a) that the place is a den - a place where any dangerous drug
and/or controlled precursor and essential chemical is administered, delivered, stored for illegal
purposes, distributed, sold, or used in any form; and b) that the accused maintains the said
place (People vs. Andanar and Garbo, supra).

An example of a case where an accused was convicted of the crime of Maintenance of a

Drug Den is People vs. Rom, G.R. No. 198452, February 19, 2014. It appears that two (2)
weeks prior to 31 August 2000, the Vice Control Section of the Cebu City Police Office (VCS-
CCPO) received confidential information from their informant that alias Dodong, who turned
out later to be Vicente Rom (Rom), was engaged in the illegal sale of shabu and also
maintained a drug den at his residence in Barangay T. Padilla, Cebu City. Thus, the VCS-
CCPO, particularly PO2 Marvin Martinez (PO2 Martinez), conducted surveillance and
monitoring operation. On 31 August 2000, at around 10:15 p.m., P/Sr. Insp. Marvin Sanchez
(P/Sr. Insp. Sanchez), Chief of VCS-CCPO, formed a team to conduct a buy-bust operation
against Rom. The buy-bust team was composed of PO2 Martinez (poseur-buyer), and others.
After the briefing, the buy-bust team proceeded to the target area and upon arrival there at
around 10:20 p.m., PO2 Martinez proceeded directly to Rom’s house, which was earlier
pointed to by their informant, who was also with them during the buy-bust operation. The rest
of the buy-bust team strategically positioned themselves nearby. Once PO2 Martinez reached
Rom’s house, he knocked on the door. Rom opened the door and PO2 Martinez subsequently
told Rom that he wanted to buy shabu worth ₱100.00. Rom took out his wallet from his pocket

42
and got one (1) heat-sealed plastic packet containing white crystalline substance, later
confirmed to be shabu, and gave it to PO2 Martinez. The latter, in turn, gave the ₱100.00 peso
bill marked money to Rom. Afterwards, PO2 Martinez told Rom that he wanted to sniff the
shabu, so the latter required the former to pay an additional amount of ₱10.00 as rental fee for
the use of his place. After paying the said amount, Rom allowed PO2 Martinez to enter his
house. Once inside the house, PO2 Martinez was directed by Rom to proceed to the room
located at the right side of the sala. Upon entering the said room, PO2 Martinez saw three (3)
persons, later identified to be Jose Delloso (Delloso), Danilo Empuerto (Empuerto) and Arnie
Ogong (Ogong), already sniffing shabu. Thereupon, PO2 Martinez made a missed call to P/Sr.
Insp. Sanchez, which was their pre-arranged signal, to signify that the whole transaction was
consummated. After the lapse of about 10 to 15 seconds, the rest of the team, who were just
few meters away from Rom’s house, barged in and identified themselves as police officers.
PO2 Martinez then told PO3 Franco Mateo Yanson (PO3 Yanson) to hold Rom. PO3 Yanson
grabbed Rom and made a body search on the latter that led to the recovery of four (4) heat-
sealed transparent plastic packets containing white crystalline substance, which were inside
Rom’s brown wallet that was tucked in his pocket; the buy-bust money consisting of ₱100.00
peso bill and ₱10.00 peso bill; and ₱280.00 consisting of two ₱100.00 peso bills, one ₱50.00
peso bill and three ₱10.00 peso bills believed to be the proceeds of Rom’s illegal activities. The
one (1) heat-sealed plastic packet of shabu bought by PO2 Martinez from the appellant
remained in the possession of the former.

The Supreme Court ruled that the prosecution had established Rom’s guilt beyond
reasonable doubt. “A drug den is a lair or hideaway where prohibited or regulated drugs are
used in any form or are found. Its existence may be proved not only by direct evidence but may
also be established by proof of facts and circumstances, including evidence of the general
reputation of the house, or its general reputation among police officers. In this case, this fact
was proven by none other than the testimony of PO2 Martinez, the poseur-buyer, who after
buying the shabu had told the appellant that he wanted to sniff the same to which the latter
responded by requiring the former to pay a rental fee of ₱10.00. The appellant (Rom),
thereafter, allowed PO2 Martinez to enter his house and directed him to proceed to one of the
rooms located at the right side of the sala. Upon entering the said room, PO2 Martinez saw
three (3) other persons already sniffing shabu. This testimony of PO2 Martinez was
corroborated by PO3 Yanson and P/Sr. Insp. Sanchez.

Moreover, as aptly observed by the Court of Appeals, several peso bills were found in
the appellant’s wallet, including three ₱10.00 peso bills, which circumstances bolstered the
prosecution’s assertion that the appellant has indeed allowed his house to be used as a drug den
for a fee of ₱10.00 per person.”

But in People vs. Andanar and Garbo, G.R. No. 246284, June 16, 2021and People vs.
Galicia G.R. No. 218402, February 14, 2018, it was clarified that in order to be convicted with
the crime of Illegal Maintenance of a Drug Den, it is not enough that dangerous drugs or drug
paraphemalias are found in the place but there must be a finding that it is place where
dangerous drugs are regularly sold to and/or used by customers of the maintainer of the den.
The word “regular” means doing the same thing in uniform intervals, or something that is a
common occurrence.

43
 In the case of People vs. Andanar and Garbo, supra, a confidential informant reported
to Taguig Police Station about illegal drug activities on Camachile Street, Western Bicutan,
Taguig City. Police Chief Major Porfirio Calagan briefed SPO2 Ernesto Sanchez (SPO2
Sanchez), PO1 Balbin, PO3 Brion and SPO2 Noel Antillon, Jr. (SPO2 Antillon, Jr.) on a buy-
bust operation to be launched in the target area. After coordinating with the Philippine Drug
Enforcement Agency (PDEA), the buy-bust team proceeded to the target area. There, SPO2
Antillon, Jr. and the confidential informant saw Mary Jane Garbo (Garbo) in front of her house.
The confidential informant greeted her and introduced SPO2 Antillon, Jr. as someone who
wanted to buy shabu. The confidential informant then asked Garbo where Michael Andanar
(Andanar) was. She said that Andanar was fetching something and then invited them inside her
house to wait. Inside the house, they met Moriel Gutierrez (Gutierrez), who was also waiting
for Andanar. After about thirty (30) minutes, Andanar arrived. He asked SPO2 Antillon, Jr.
how much shabu he wanted to buy. The latter answered Pl,000.00 worth. Since he only had
two (2) plastic sachets with him, Andanar agreed to sell P500 worth of shabu to SPO2 Antillon,
Jr. while the other, to Gutierrez. SPO2 Antillon, Jr. handed the P500.00 buy-bust money to
Andanar while the latter, in turn, gave him a plastic sachet with white crystalline substance.
Garbo told SPO2 Antillon, Jr. that he could already use the drug for an additional P20.00. He
declined, saying he had his own pipe in the car. SPO2 Antillon, Jr. instructed the confidential
informant to go outside and signal the team. When the rest of the team arrived, SPO2 Antillon,
Jr. arrested Andanar while SPO2 Sanchez arrested Garbo and Gutierrez. SPO2 Antillon, Jr.
frisked Andanar and recovered from the latter the buy-bust money. He also frisked Gutierrez
and recovered an aluminum foil and a lighter. Andanar was charged with illegal sale of
dangerous drugs while Garbo with illegal maintenance of a drug den under Section 6 of R.A.
No. 9165.

The Supreme Court acquitted both Andanar and Garbo. As to Garbo, the offense of
illegal maintenance of a drug den under Section 6 of RA 9165, “requires the following
elements: a) that the place is a den - a place where any dangerous drug and/or controlled
precursor and essential chemical is administered, delivered, stored for illegal purposes,
distributed, sold, or used in any form; and b) that the accused maintains the said place. It is not
enough that dangerous drugs or drug paraphernalias were found in the place. More than a
finding that the dangerous drug is being used there, it must also be clearly shown that the
accused is the maintainer or operator or the owner of the place where the dangerous drug is
used or sold. Here, the prosecution failed to establish beyond reasonable doubt that Garbo is
maintaining a drug den. Consider: First, a drug den is a lair or hideaway where prohibited or
regulated drugs are used in any form or are found. Its existence may be proved not only by
direct evidence but may also be established by proof of facts and circumstances, including
evidence of the general reputation of the house, or its general reputation among police officers.

People v. Galicia ordained that the prosecution must establish that the alleged drug den
is a place where dangerous drugs are regularly sold to and/or used by customers of the
maintainer of the den. The word “regular” means doing the same thing in uniform intervals, or
something that is a common occurrence.

44
 Here, PO2 Antillon, Jr. testified that Garbo invited him inside her house where the sale
of illegal drugs between him and Andanar took place. Thereafter, Garbo offered PO2 Antillon,
Jr. that he could already use the drug he just bought for an additional fee of P20.00. If at all,
this only proves an isolated illegal drug transaction involving SPO2 Antillon, Jr., Andanar, and
Garbo. There was nothing on record, however, showing that Garbo’s house was frequently
used as a drug den. Neither did the prosecution prove that Garbo’s house had a general
reputation as such. Surely, the prosecution had only presented a singular occurrence of the so-
called illegal drug activity in Garbo’s house. The same does not satisfy the requirement in
Galicia. Garbo, therefore, cannot be considered a - maintainer of drug den.”

The facts of the case of People vs. Galicia, G.R. No. 218402, February 14, 2018, are as
follows: On the basis of the video footage of Amel Tugade (Tugade), a camera man of the
television program “Mission X,” showing several persons selling and using shabu in the
shanties inside the Mapayapa compound along F. Soriano Street, Pasig City, Police Senior
Inspector Ismael Fajardo, Jr. (P/Insp. Fajardo, Jr.) was instructed to conduct further
surveillance of the activities inside the compound. P/Insp. Fajardo, Jr. assigned PO2 James
Nepomuceno (PO2 Nepomuceno) to accompany Tugade inside the compound to take another
video of the compound and to conduct a test-buy. On January 31, 2006, PO2 Nepomuceno and
Tugade went to the compound and conducted a surveillance. They were able to take video
footage of several persons selling and using shabu inside the compound. They were also able to
conduct a test-buy of shabu worth ₱300.00. The following day, PO2 Nepomuceno and Tugade
conducted another test-buy inside the compound and they were able to buy ₱l00.00 worth
of shabu. Both specimen were submitted to the PNP Crime Laboratory for examination and
both tested positive for methamphetamine hydrochloride or shabu. Since the reported selling
and use of shabu in the compound were confirmed, P/Insp. Fajardo Jr. applied for a search
warrant before the Reginal Trial Court. On February 9, 2006, Executive Judge Natividad A.
Giron-Dizon of the RTC of Quezon City issued Search Warrant No. 4271(06). On February 10,
2006, armed with a search warrant, around 200 men under the command of Supt. Eduardo
Acierto from the joint forces of the Philippine National Police (PNP) AIDSOTF, Special
Operations Unit (SOU), Special Action Force (SAF), Traffic Managernent Group (TMG), and
Scene of the Crime Operative (SOCO), joined by members of the media and representatives
from the Department of Social Welfare and Development (DSWD), raided the Mapayapa
Compound to serve Search Warrant No. 4271-06 against several persons. More than 300
persons were arrested in the raid, 212 of whom were charged in court for various violations
under R.A. No. 9165.

Ramil Galicia (Galicia) was one of the persons arrested and charged with the following
violations: maintenance of a drug den in violation of Section 6, R.A. No. 9165; illegal
possession of dangerous drugs and drug paraphernalia in violation of Sections 11 and 12, R.A.
No. 9165; and use of dangerous drugs in violation of Section 15, R.A. No. 9165.

Galicia and his wife were inside the shanty during the search. Galicia was sitting in
front of a drug paraphernalia when the team started to conduct its search. In the course of the
search, the team was able to find and seize from Galicia plastic sachets containing crystalline
substances, weighing scale, cellphone, assorted lighters, wallet containing dollars and a few
coins, aluminum foil, and assorted cutters and scissors.

45
 The Supreme Court acquitted Galicia in so far as the charge for maintenance of a drug
den is concerned. It held that “[f]or an accused to be convicted of maintenance of a drug den,
the prosecution must establish with proof beyond reasonable doubt that the accused is
maintaining a den where any dangerous drug is administered, used, or sold. It must be
established that the alleged drug den is a place where dangerous drugs are regularly sold to
and/or used by customers of the maintainer of the den. As correctly pointed out by the
appellate court: To convict an accused under this section, the prosecution must show that the
place he is maintaining is a den, dive, or resort where dangerous drug is used or sold in any
form. Hence, two things must be established, thus: (a) that the place is a den - a place where
any dangerous drug and/or controlled precursor and essential [chemical] is administered,
delivered, stored for illegal purposes, distributed, sold, or used in any form; (b) that the accused
maintains the said place. Hence, it is not enough that the dangerous drug or drug paraphernalia
were found in the place. More than a finding that dangerous drug is being used thereat, there
must also be a clear showing that the accused is the maintainer or operator or the owner of the
place where the dangerous drug is used or sold.”

“…From the testimonies of the arresting officers, it is clear that the prosecution failed
to establish that the shanty where appellant was found was a place where dangerous drugs were
sold or used. The prosecution’s witnesses merely testified that when they entered Target No. 8,
they found drug paraphernalia inside the shanty and sachets of crystalline substance in the
person of the appellant. The prosecution failed to allege and prove an essential element of the
offense - that dangerous drugs were being sold or used inside the shanty located at Target No.
8. What was clear was that appellant was caught in possession of shabu and drug
paraphernalia. There was nothing in evidence that would indicate that the arresting officers saw
that dangerous drugs were being sold and/or used at Target No. 8 in the course of the search of
the premises. Since there was no evidence that dangerous drugs were sold and/or used in the
shanty located at Target No. 8, appellant may not be held liable for violation of Section 6,
Article U, RA 9165 on maintenance of a drug den.”

Section 7. Employees and Visitors of a Den, Dive or Resort. - The

penalty of imprisonment ranging from twelve (12) years and one (1) day to
twenty (20) years and a fine ranging from One hundred thousand pesos
(P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be
imposed upon:

(a) Any employee of a den, dive or resort, who is aware of the

nature of the place as such; and

(b) Any person who, not being included in the provisions of the
next preceding paragraph, is aware of the nature of the place as
such and shall knowingly visit the same.

46
 NOTES

As worded, an employee of a den, dive or resort is criminally liable only for the crime
punished under this provision in case he/she is aware that the place is a drug den. Similarly, a
person visiting such kind of place is criminally liable only if he/she knows the place to be a
drug den and he/she knowingly visits the same.

The mere fact that a person tested positive for drug use in a place does not mean that
said person is aware that the place is a drug den. There should be other circumstantial evidence
to conclude beyond reasonable doubt that the person had knowingly visited a drug den.

This much was said in Coronel, et al vs. People, G.R. No. 214536, March 13, 2017. On
May 19, 2010, a Philippine Drug Enforcement Agency (PDEA) team was dispatched to
implement a search warrant. They arrived at the subject building at around 2:00 p.m., knocked
on the door, and announced that they had a search warrant. A PDEA agent shouted that
somebody had jumped out the window and the door was forced open with a battering ram. IO1
Jake Edwin Million and IO1 Jayson Albao chased down those who jumped out the window.
Three (3) persons, identified as Joanne Olivarez (Olivarez), Erlinda Fetalino, and Benjie
Guday, were found inside the subject building. IO2 Daniel Discaya read to them the contents of
the search warrant. Medel Coronel (Coronel), Ronaldo Permejo (Permejo), and Nestor
Villafuerte (Villafuerte) were apprehended after trying to escape out of the window. They were
brought back to the subject building, where the contents of the search warrant was read to
them. Thereafter, Barangay Kagawad Oga Hernandez (Barangay Kagawad Hernandez), Herald
Santos (Santos), Assistant City Prosecutor of Pasay City Angel Marcos (Atty. Marcos), and
DZAR Sunshine Radio Reporter Jimmy Mendoza (Mendoza) arrived, and the search was
conducted in their presence. During the search, the team recovered, among others, transparent
plastic sachets, aluminium foils, containers of white crystalline substance and white powdery
residue, disposable lighters, improvised plastic scoops, a total amount of ₱580.00 in assorted
bills, and ₱165.00 in coins. Coronel, Permejo, Villafuerte, and Olivarez were arrested and
apprised of their constitutional rights. The confiscated items were also inventoried,
photographed, and marked in their presence, as well as in the presence of the barangay officials
and the Department of Justice and media representatives. The arrested suspects were brought to
the PDEA Headquarters for investigation and mandatory drug testing, together with the seized
objects, one of which was identified as shabu. Later on, Coronel, Villafuerte, Permejo, and
Olivarez tested positive for shabu.

On motion for reconsideration, the Supreme Court acquitted the accused-petitioners

from the crime of knowingly visiting a drug den. While it may be true that “the drug test results
sufficiently proved that petitioners had used drugs some time before their arrest, [h]owever,
assuming that petitioners were, in fact, at the alleged drug den before their arrest, there was no
showing how long petitioners were at the alleged drug den, or how long the drugs had been in
their system. In other words, there is no basis to assume that petitioners used drugs at the
moment immediately before arrest, and thus, at the location of the arrest.” “Assuming that
persons who test positive for drugs used them at the place of arrest is not sufficient to show that
they were aware of the nature of the suspected drug den before visiting it, absent any other
circumstantial evidence. There was no attempt to show that petitioners knew the nature of the

47
alleged drug den, or even that they used drugs in the premises. The petitioners were not found
to be in possession of any drugs. When petitioners were arrested, nobody was found “in the act
of using, selling or buying illegal drugs, nor packaging nor hiding nor transporting the same.
There were no acts alleged or evidence found, which would tend to show a familiarity with the
nature of the place as a drug den. The crime of knowingly visiting a drug den under Article II,
Section 7 of Republic Act No. 9165 carries with it a minimum penalty of imprisonment of 12
years and one (1) day, and a maximum of 20 years. It is not to be taken so lightly that its
elements can be presumed to exist without any effort to show them.”

Section 8. Manufacture of Dangerous Drugs and/or Controlled

Precursors and Essential Chemicals. - The penalty of life imprisonment to
death and a fine ranging from Five hundred thousand pesos
(P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed
upon any person, who, unless authorized by law, shall engage in the
manufacture of any dangerous drug.

The penalty of imprisonment ranging from twelve (12) years and

one (1) day to twenty (20) years and a fine ranging from One hundred
thousand pesos (P100,000.00) to Five hundred thousand pesos
(P500,000.00) shall be imposed upon any person, who, unless authorized
by law, shall manufacture any controlled precursor and essential
chemical.

The presence of any controlled precursor and essential chemical or

laboratory equipment in the clandestine laboratory is a prima facie proof
of manufacture of any dangerous drug. It shall be considered an
aggravating circumstance 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;

48
 (d) Any clandestine laboratory was concealed with legitimate
business operations; or

(e) Any employment of a practitioner, chemical engineer,

public official or foreigner.

The maximum penalty provided for under this Section shall be

imposed upon any person, who organizes, manages or acts as a
"financier" of any of the illegal activities prescribed in this Section.

The penalty of twelve (12) years and one (1) day to twenty (20)
years of imprisonment and a fine ranging from One hundred thousand
pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall
be imposed upon any person, who acts as a "protector/coddler" of any
violator of the provisions under this Section.

NOTES

In People vs. Court of Appeals et al, G.R. No. 227899, July 10, 2019, the police and the
Philippine Drug Enforcement Agency (PDEA), armed with a search warrant, raided the house
and piggery owned by one Eusebio Tangalin (Eusebio) in Barangay Upper Bimmotobot,
Naguilian, La Union. It was discovered that the place was a clandestine shabu laboratory.
Seized from the compound were truckloads of dangerous drugs (shabu), controlled precursors,
essential chemicals, equipment and paraphernalia utilized for the manufacture of shabu. Police
authorities, likewise, arrested on the spot Dante Palaganas (Dante) and Andy Tangalin (Andy),
the alleged caretakers of the property. Dante testified that P/Supt. Dionicio Borromeo
(P/Supt. Borromeo) instructed him to find a lot suitable for a piggery business. Through the
intervention of Andy, Dante eventually found a secluded lot in Upper Bimmotobot. Apprised
of this find, P/Supt. Borromeo told Dante to immediately relay the information to Joselito
Artuz (Joselito). Dante met with Joselito and three (3) unnamed Chinese nationals, and together
they drove to the site. Joselito was pleased with the location and told Dante to negotiate with
the landowner. Subsequently, Joselito, as represented by Dante, leased the property from
Eusebio. P/Supt. Borromeo told Dante to omit his name from any transaction. As it turned
out, there was no piggery business, but a clandestine shabu laboratory. Joselito and his Chinese
associates systematically transformed the bare land into a thriving hotbed of shabu. Dante
stood watch as the laboratory efficiently yielded gallons and gallons of shabu. The end
products were transported to Cesmin Beach Resort in Bauang, La Union and shipped later on
to Manila. Dante dutifully reported the day’s produce to P/Supt. Borromeo. SPO1 Joey
Abang (SPO1 Abang), on the other hand, closely monitored Dante. Every time they would
meet in the Regional Mobile Group (RMG) headquarters, SPO1 Abang always inquired about
the activities of Dante as caretaker of the Upper Bimmotobot laboratory. He once remarked to
Dante that his job was easy and he will kill him if he does not do his job. SPO1 Abang had
once visited the laboratory himself.

49
 It was ruled that “P/Supt. Borromeo's participation was not limited to merely
protecting the violators nor facilitating their escape. His co-respondent and co-conspirators
regularly reported to and updated him of the operations in the shabu laboratory. He monitored
all the illegal activities through Dante, who acted under his control and carried out specific
instructions coming from him. These acts sufficiently established his pivotal role in the
conspiracy. Thus, there was no logical reason for the CA to downgrade his liability from that of
a co-conspirator to a mere coddler or protector… As to the participation and liability of SPO1
Abang, the Court is convinced that he is also a co-conspirator. Contrary to the RTC’s findings,
SPO1 Abang was not just acting on orders of his boss, P/Supt. Borromeo. SPO1 Abang was, in
fact, ensuring the regular and orderly operations of the Bimmotobot shabu factory. Moreover,
the evidence adduced by the prosecution sufficiently established his knowledge of and active
participation in the conspiracy, to wit: (1) SPO1 Abang was the recruiter and handler of Dante;
(2) Dante reported to both private respondents; (3) SPO1 Abang regularly checked and
inquired about Dante’s work at Upper Bimmotobot. On one occasion, Dante attempted to leave
his job in the shabu laboratory, but SPO1 Abang employed force and threatened his life. He
allegedly told Dante, “Just stay in your work because that is an easy job, you just watch over
the place, if you will not do it, I will kill you”; (4) SPO1 Abang was also the bodyguard of
P/Supt. Borromeo… SPO1 Abang’s participation ensured the success of the operations of the
clandestine shabu laboratory. As such, he cannot be considered a mere accessory to the
involvement of P/Supt. Borromeo.”

Section 9. Illegal Chemical Diversion of Controlled Precursors and

Essential Chemicals. - The penalty of imprisonment ranging from twelve
(12) years and one (1) day to twenty (20) years and a fine ranging from
One hundred thousand pesos (P100,000.00) to Five hundred thousand
pesos (P500,000.00) shall be imposed upon any person, who, unless
authorized by law, shall illegally divert any controlled precursor and
essential chemical.

Section 10. Manufacture or Delivery of Equipment, Instrument,

Apparatus, and Other Paraphernalia for Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals. - The penalty of
imprisonment ranging from twelve (12) years and one (1) day to twenty
(20) years and a fine ranging from One hundred thousand pesos
(P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be
imposed upon any person who shall deliver, possess with intent to deliver,
or manufacture with intent to deliver equipment, instrument, apparatus
and other paraphernalia for dangerous drugs, knowing, or under
circumstances where one reasonably should know, that it will be used to
plant, propagate, cultivate, grow, harvest, manufacture, compound,
convert, produce, process, prepare, test, analyze, pack, repack, store,

50
contain or conceal any dangerous drug and/or controlled precursor and
essential chemical in violation of this Act.

The penalty of imprisonment ranging from six (6) months and one
(1) day to four (4) years and a fine ranging from Ten thousand pesos
(P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed if it
will be used to inject, ingest, inhale or otherwise introduce into the human
body a dangerous drug in violation of this Act.

The maximum penalty provided for under this Section shall be

imposed upon any person, who uses a minor or a mentally incapacitated
individual to deliver such equipment, instrument, apparatus and other
paraphernalia for dangerous drugs.

Section 11. Possession of Dangerous Drugs. - The penalty of life

imprisonment to death and a fine ranging from Five hundred thousand
pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be
imposed upon any person, who, unless authorized by law, shall possess
any dangerous drug in the following quantities, regardless of the degree
of purity thereof:

(1) 10 grams or more of opium;

(2) 10 grams or more of morphine;
(3) 10 grams or more of heroin;
(4) 10 grams or more of cocaine or cocaine hydrochloride;
(5) 50 grams or more of methamphetamine hydrochloride or
"shabu";
(6) 10 grams or more of marijuana resin or marijuana resin oil;
(7) 500 grams or more of marijuana; and
(8) 10 grams or more of other dangerous drugs such as, but not
limited to, methylenedioxymethamphetamine (MDMA) or “ecstasy”,
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 requirements, as determined
and promulgated by the Board in accordance to Section 93, Article
XI of this Act.

51
 Otherwise, if the quantity involved is less than the foregoing
quantities, the penalties shall be graduated as follows:

(1) Life imprisonment and a fine ranging from Four hundred

thousand pesos (P400,000.00) to Five hundred thousand pesos
(P500,000.00), if the quantity of methamphetamine hydrochloride or
"shabu" is ten (10) grams or more but less than fifty (50) grams;

(2) Imprisonment of twenty (20) years and one (1) day to life
imprisonment and a fine ranging from Four hundred thousand pesos
(P400,000.00) to Five hundred thousand pesos (P500,000.00), if the
quantities of dangerous drugs are five (5) grams or more but less
than ten (10) grams of opium, morphine, heroin, cocaine or cocaine
hydrochloride, marijuana resin or marijuana resin oil,
methamphetamine hydrochloride or "shabu", or other dangerous
drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA,
LSD, 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 requirements; or three
hundred (300) grams or more but less than five hundred (500)
grams of marijuana; and

(3) Imprisonment of twelve (12) years and one (1) day to

twenty (20) years and a fine ranging from Three hundred thousand
pesos (P300,000.00) to Four hundred thousand pesos
(P400,000.00), if the quantities of dangerous drugs are less than
five (5) grams of opium, morphine, heroin, cocaine or cocaine
hydrochloride, marijuana resin or marijuana resin oil,
methamphetamine hydrochloride or "shabu", or other dangerous
drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA,
LSD, 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 requirements; or less
than three hundred (300) grams of marijuana.

NOTES

The elements of the offense of illegal possession of dangerous drugs are: (1) the
accused is in 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 and consciously possessed

52
the said drug (People vs. Quijano, G.R. No. 247558, February 19, 2020; People vs. Bio, G.R.
No. 195850, February 16, 2015).

Settled is the rule that “possession of dangerous drugs constitutes prima facie evidence
of knowledge or animus possidendi, which is sufficient to convict an accused in the absence of
a satisfactory explanation of such possession.” (People vs. Bio, G.R. No. 195850, February 16,
2015)

People vs. Quijano, supra, teaches that “in possession of illicit drugs cases, ownership
is inconsequential. Mere possession of the illicit drugs is malum prohibitum and the burden of
proof is upon the accused to prove that they have a permit or clearance to possess the
prohibited drugs. On April 28, 2016, at around 1:20 in the afternoon, Jail Officer Arthur
Briones was at the window section of the Manila City Jail. There, he noticed Marivic Tulipat
(Tulipat), a regular visitor at the city jail, receiving a light violet bag from someone inside the
city jail bakery. He became suspicious and called her attention. Tulipat appeared hesitant and
he had to call her attention several times more before she finally approached him. But before
she did, she handed the bag to appellant Allan Quijano. This prompted him to also summon
appellant who, just like Tulipat, appeared hesitant. Like what he did to Tulipat, he had to also
call for appellant several times more before he finally came to him. He then asked appellant
about the contents of the bag. Instead of responding, however, appellant turned to Tulipat and
tried to give it back to her but Tulipat refused. His suspicions grew and so he grabbed the bag
and opened it. Inside, he saw another blue bag which contained a transparent bag containing
white crystalline substance. He immediately arrested appellant and Tulipat and apprised them
of their constitutional rights. The seized items were marked, inventoried, and photographed
inside the Manila City Jail. Tulipat, appellant, JO3 Jose Rodzon Antonio, Senior Assistant City
Prosecutor Maria Josefina Concepcion, Kagawad Rodelito E. Jurilla, and Police Inspector
Adelo A. Natividad were all present during the marking, inventory and photographing.

The Supreme Court convicted the accused for possession of dangerous drugs. “For a
successful prosecution of an offense for illegal possession of dangerous drugs, the prosecution
must establish the following elements: (a) the accused was in possession of an item or object
identified as a prohibited drug; (b) such possession was not authorized by law; and (c) the
accused freely and consciously possessed the said drug. This crime is mala prohibita, as such,
criminal intent is not an essential element. The prosecution, however, must prove that the
accused had the intent to possess (animus possidendi). Possession, under the law, includes not
only actual possession, but also constructive possession. Actual possession exists when the
drug is in the immediate physical possession or control of the accused. Constructive
possession, on the other hand, exists when the drug is under the dominion and control of the
accused or when he has the right to exercise dominion and control over the place where it is
found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if
his right to exercise control and dominion over the place where the contraband is located, is
shared with another… In possession of illicit drugs cases, ownership is inconsequential. Mere
possession of the illicit drugs is malum prohibitum and the burden of proof is upon the accused
to prove that they have a permit or clearance to possess the prohibited drugs. Here, both the
trial court and the Court of Appeals correctly found that the prosecution was able to sufficiently
establish all the elements of illegal possession of dangerous drugs. Appellant was caught in

53
possession of illegal drugs of considerable quantity of 729.2 grams of shabu inside the Manila
City Jail, sans any authority. He has not disputed this fact, albeit, he asserts that the element
of animus possidendi was absent… Appellant failed to prove absence of animus possidendi.
Animus possidendi is a state of mind. It is determined on a case-to-case basis taking into
consideration the prior and contemporaneous acts of the accused and the surrounding
circumstances. It must be inferred from the attendant events in each particular case. A mere
unfounded assertion of the accused that he or she did not know that he or she had possession of
the illegal drug is insufficient. Animus possidendi is then presumed because he or she was
thereby shown to have performed an act that the law prohibited and penalized. Possession of
dangerous drugs constitutes prima facie evidence of knowledge or animus possidendi sufficient
to convict an accused in the absence of a satisfactory explanation. Consequently, the burden of
evidence is shifted to the accused to explain the absence of knowledge or animus possidendi.”

People vs. Dejos, G.R. 237423, October 12, 2020 tells us once more that an acquittal
from illegal sale of drugs is not a bar to a finding of guilt of possession of dangerous drugs. At
around 11:30 p.m. of July 17, 2012, operatives from the Provincial Anti-Illegal Drugs Special
Operations Task Group (PAIDSOTG), led by Police Officer I Julmar J. Berdejo (PO1 Berdejo)
and PO3 Serito C. Ongy (PO3 Ongy), conducted a buy-bust operation against accused-
appellant in the interior part of Colon Extension, Taclobo, Dumaguete City. During the
operation but before the buy bust money was given to the accused-appellant, the operatives
recovered seven (7) bultos of shabu, with a total net weight of 31.75 grams, from accused-
appellant.

The Supreme Court held that “[t]he elements of Illegal Possession of Dangerous Drugs
under Section 11, Article II of RA 9165 are: (a) the accused was in possession of an item or
object identified as a prohibited drug; (b) such possession was not authorized by law; and (c)
the accused freely and consciously possessed the said drug.

“In this case, the RTC and the CA correctly found that accused-appellant committed the
offense of Illegal Possession of Dangerous Drugs as the records clearly show that he was
caught in flagrante possessing shabu following a buy-bust operation conducted by
PAIDSOTG. They also aptly deemed accused-appellant to have knowledge of the possession
as he failed to discharge the burden of explaining why he was in possession of the dangerous
drug.”

“[W]hile there was an agreement of sale of illegal drugs between accused-appellant and
the poseur-buyer, accused-appellant was suddenly arrested before having accepted the
consideration of the sale. Conformably with People v. Dasigan and People v. Hong Yeng E, et
al., the Court agrees with the trial court that the offense committed is Illegal Possession of
Dangerous Drugs. This is in keeping with the settled rule that possession of dangerous drugs is
necessarily included in the sale of prohibited drugs.”

In Miclat vs. People, G.R. No. 176077, August 31, 2011, the Caloocan City Police
Station-SDEU formed a surveillence team to verify a report from Camp Crame about the illicit
and down-right drug-trading activities being undertaken along Palmera Spring II, Bagumbong,
Caloocan City involving Abe Miclat, Wily alias “Bokbok” and one Mic or Jojo. The team was

54
headed by SPO4 Ernesto Palting (SPO4 Palting) and is composed of five (5) more operatives
from the Drug Enforcement Unit, namely: PO3 Pagsolingan, PO2 Modina, PO2 De Ocampo
and PO3 Antonio. After a short briefing at their station, the team boarded a rented passenger
jeepney and proceeded to the target area. When the group of SPO4 Palting arrived at Palmera
Spring II, Caloocan City at around 3:50 o’clock that same afternoon, they were at once led by
their informant to the house of one alias “Abe.” PO3 Antonio then positioned himself at the
perimeter of the house, while the rest of the members of the group deployed themselves nearby.
Through a small opening in the curtain-covered window, PO3 Antonio peeped inside and there
at a distance of 1½ meters, he saw “Abe” arranging several pieces of small plastic sachets
which he believed to be containing shabu. Slowly, said operative inched his way in by gently
pushing the door as well as the plywood covering the same. Upon gaining entrance, PO3
Antonio forthwith introduced himself as a police officer while “Abe,” on the other hand, after
being informed of such authority, voluntarily handed over to the former the four (4) pieces of
small plastic sachets the latter was earlier sorting out. PO3 Antonio immediately placed the
suspect under arrest and brought him and the four (4) pieces of plastic sachets containing white
crystalline substance to their headquarters and turned them over to PO3 Fernando Moran for
proper disposition. The suspect was identified as Abraham Miclat y Cerbo a.k.a “ABE.”

The Supreme Court sustained the conviction of the accused. “For conviction of illegal
possession of a prohibited drug to lie, the following elements must be established: (1) the
accused was in possession of an item or an object identified to be a prohibited or regulated
drug; (2) such possession is not authorized by law; and (3) the accused was freely and
consciously aware of being in possession of the drug. Based on the evidence submitted by the
prosecution, the above elements were duly established in the present case. Mere possession of a
dangerous drug per se constitutes prima facie evidence of knowledge or animus
possidendi sufficient to convict an accused absent a satisfactory explanation of such possession
– the onus probandi is shifted to the accused, to explain the absence of knowledge or animus
possidendi.”

“On the argument that the evidence seized were not admissible in evidence because he
was illegally arrested, the Supreme Court explained that “considering the circumstances
immediately prior to and surrounding the arrest of the petitioner, petitioner was clearly arrested
in flagrante delicto as he was then committing a crime, violation of the Dangerous Drugs Act,
within the view of the arresting officer… It is to be noted that petitioner was caught in the act
of arranging the heat-sealed plastic sachets in plain sight of PO3 Antonio and he voluntarily
surrendered them to him upon learning that he is a police officer. The seizure made by PO3
Antonio of the four plastic sachets from the petitioner was not only incidental to a lawful arrest,
but it also falls within the purview of the “plain view” doctrine.”

“Objects falling in plain view of an officer who has a right to be in a position to have
that view are subject to seizure even without a search warrant and may be introduced in
evidence. The “plain view” doctrine applies when the following requisites concur: (a) the law
enforcement officer in search of the evidence has a prior justification for an intrusion or is in a
position from which he can view a particular area; (b) the discovery of evidence in plain view
is inadvertent; (c) it is immediately apparent to the officer that the item he observes may be
evidence of a crime, contraband or otherwise subject to seizure. The law enforcement officer

55
must lawfully make an initial intrusion or properly be in a position from which he can
particularly view the area. In the course of such lawful intrusion, he came inadvertently across
a piece of evidence incriminating the accused. The object must be open to eye and hand and its
discovery inadvertent… It is clear, therefore, that an object is in plain view if the object itself is
plainly exposed to sight. Since petitioner’s arrest is among the exceptions to the rule requiring
a warrant before effecting an arrest and the evidence seized from the petitioner was the result
of a warrantless search incidental to a lawful arrest, which incidentally was in plain view of the
arresting officer, the results of the ensuing search and seizure were admissible in evidence to
prove petitioner’s guilt of the offense charged.”

In People vs. Pis-an, G.R. No. 242692, July 13, 2020, David James Pis-an (Pis-an) was
placed under surveillance after the police received a tip from a confidential informant that the
former was involved in drug dealing. The police then conducted a test-buy operation and was
able to recover from Pis-an one (1) transparent plastic sachet which yielded positive results
for shabu. Thus, on February 18, 2015, Police Officer 3 Derek T. Alcoran (PO3 Alcoran)
applied for a search warrant. Executive Judge Gerardo A. Paguio, Jr. issued a search warrant
authorizing the search of Pis-an’s residence located in Barangay Camanjac, Dumaguete City.
On February 25, 2015, a team headed by PO2 Eugene A. Calumba (PO2 Calumba) and PO2
Dexter S. Banua (PO2 Banua) discussed their individual assignments and plan of action. After
receiving the coordination control number from the local Philippine Drug Enforcement Agency
(PDEA), the team marched to implement SW No. 10-2015. Upon reaching the house of Pis-an,
the police officers, along with Brgy. Kagawad Raul Dicen (Brgy. Kagawad Dicen), enforced
the warrant and seized, among others 14 pieces of heat-sealed transparent plastic sachets each
containing white crystalline substance. The chemist reported that all items tested positive for
methamphetamine hydrochloride.

The conviction of Pis-an for illegal possession of dangerous drugs was sustained by the
High Court. “For the charge of illegal possession of a dangerous drug to prosper, it must be
proven that (1) the accused was in possession of an item or an object identified to be a
prohibited or regulated drug, (2) such possession is not authorized by law, and (3) the accused
was freely and consciously aware of being in possession of the drug. In the case at bench, the
courts a quo correctly held that all the aforementioned elements are present here, since: (i) by
virtue of SW No. 10- 2015, a valid search warrant, the police officers recovered, among others,
14 heat-sealed transparent plastic sachets containing white crystalline substance which later
tested positive for methamphetamine hydrochloride or shabu; (ii) such possession is not
authorized by law as Pis-an himself admitted during the pre-trial; and (iii) the prohibited drugs
were uncovered from Pis-an’s house which was a prima facie evidence of knowledge
or animus possidendi.”

OTHER CASES WHERE THE ACCUSED WERE FOUND GUILTY OF POSSESSION OF

DANGEROUS DRUGS

1. People vs. Dasigan, G.R. No. 206229, February 4, 2015. A male confidential
informant reported to Police Chief Inspector Luisito Meris (PCI Meris) that a certain alias
“Amy” is engaged in delivering Methamphetamine Hydrochloride, also known as “Shabu”
within the vicinity of the La Trinidad Trading Post at Km. 5, La Trinidad, Benguet. PCI

56
Meris relayed the information to the Philippine Drug Enforcement Agency (PDEA) Regional
Director, Col. Inmodias and the latter formed a team tasked to conduct the operation against
alias “Amy” and cause her eventual arrest. PCI Meris was designated Team Leader and PO2
Arieltino Corpuz (PO2 Corpuz), SPO2 Cabily Agbayani and SPO1 Bernardo Ventura were
tasked as arresting officers. PCI Meris then directed PO2 Corpuz and the confidential
informant to conduct surveillance within the vicinity of the La Trinidad Trading Post at Km.
5, La Trinidad, Benguet and look into the activities of alias “Amy.” PO2 Corpuz called
“Amy” and asked her regarding their transaction as he was willing to buy “shabu” worth two
thousand pesos (Php 2,000.00). “Amy” said she will deliver the shabu the following day at
the vicinity of the La Trinidad Trading Post. The following day, the team went back to the La
Trinidad Trading Post and again PO2 Corpuz called “Amy” through her cell phone. “Amy”
answered and directed PO2 Corpuz to go to the road leading to Bayabas, La Trinidad,
Benguet and she would deliver the “shabu” there. Thirty (30) minutes later, “Amy” arrived.
She brought what appeared to be small transparent plastic sachets containing white crystalline
substance, picked out two (2) sachets and gave it to PO2 Corpuz. “Amy” then demanded the
payment of two thousand pesos (Php 2,000). But PO2 Corpuz did not give the money but
instead placed the two (2) sachets in his pants pocket and arrested “Amy”. After conducting a
search, the operatives were able to obtain six (6) sealed sachets of shabu from her. Thereafter,
“Amy” was charged with illegal possession and illegal sale of shabu under Sections 11 (3)
and 5, Article II of Republic Act No. 9165 (R.A. No. 9165) or the Comprehensive Dangerous
Drugs Act of 2002.

The Supreme Court acquitted the accused-appellant from illegal sale of dangerous
drugs because she was arrested before the buy bust money was given to her.

However, the High Court sustained her conviction for illegal possession of dangerous
drugs. All the elements of illegal possession of dangerous were proven. “First, the four (4)
plastic sachets containing shabu, which are the subject of the charge for illegal possession of
dangerous or prohibited drugs, were found on accused-appellant’s person during the search
conducted by the PDEA officers following accused-appellant’s arrest in flagrante delicto for
illegal sale of shabu. Second, accused-appellant was not able to demonstrate his legal
authority to possess the subject shabu. And third, accused-appellant’s act of giving PO2
Corpuz, the poseur-buyer, one sachet and telling him “maganda ito, first class ito,” and then
bringing out more sachets and selecting two sachets to give to PO2 Corpuz indicates that she
freely and consciously possessed the subject shabu. Consequently, accused-appellant was
correctly charged and convicted of illegal possession of shabu.”

2. People vs. Minanga, G.R. No. 202837, January 21, 2015. After receiving reliable
information from a police asset that Rakim Minanga (Minanga) is actively engaged in selling
illegal drugs, a team was formed to conduct a buy bust operation. Upon arrival at the
designated place, the police asset introduced PO1 Rommel dela Cruz Condez (PO1 Condez)
to Minanga as an interested buyer of shabu. After Minanga agreed to sell to PO1 Condez four
(4) “sacks” of shabu for the amount of P20,000.00, Minanga told PO1 Condez to wait. He
then left and after a few minutes returned. He then showed PO1 Condez four (4) big sachets
of shabu. After receiving the four (4) sachets, PO1 Condez examined them and being
convinced of their genuineness, gave the prearranged signal. Thus, PO2 Saldino Virtudazo

57
rushed to the scene. The police officers introduced themselves as Philippine Drug
Enforcement Agency (PDEA) agents and arrested Minanga, informing the latter of his
constitutional rights. The money was not given to Minanga as it was intended only as a show
money.

The Supreme Court sustained the conviction of the accused for illegal possession of
illegal drugs. “The essential elements of illegal possession of dangerous drugs are (1) the
accused is in possession of an item or object that is identified to be a prohibited drug; (2) such
possession is not authorized by law; and (3) the accused freely and consciously possess the
said drug. We find that these essential elements were proven in this case. Appellant was
caught in flagrante possessing 12.882 grams of shabu, a dangerous drug, packed in four big
sachets. His possession of said dangerous drugs is not authorized by law. And he was freely
and consciously possessing the contraband as shown by his act of handing these four sachets
to PO1 Condez in an intended sale.”

3. People vs. Portuguez, G.R. No. 194499, January 14, 2015. A confidential asset went
to the Pasig City Police Station, City Hall Detachment, to report the illegal drug activities of a
certain alias Bobot at Balmores Street, Barangay Kapasigan, Pasig City. Upon receipt of the
information, the Chief of said Station formed a buy-bust team wherein PO1 Aldrin Mariano
(PO1 Mariano) was designated as the poseur-buyer. After coordinating with the Philippine
Drug Enforcement Agency (PDEA) and preparing the buy-bust money, the team and its asset
proceeded to Balmores Street. Arriving thereat, the asset pointed to Bobot as the target person.
PO1 Mariano saw Bobot and Manuel Portuguez (Portuguez) transacting illegal drugs. When
PO1 Mariano and the asset met Portuguez and Bobot on the road, the asset asked Portuguez,
“P’re, meron pa ba?” At this point, Portuguez looked at PO1 Mariano and thereafter, attempted
to run. However, PO1 Mariano was able to take hold of him. Then, the other police operatives
arrived. Portuguez was asked to open his hand. Upon seeing the suspected shabu on his hand,
they arrested him, informed him of his constitutional rights and boarded him on their service
vehicle. Before leaving the area, PO1 Mariano placed the markings “EXH A ARM 04-16-03”
on the seized shabu.

The Supreme Court said: “[t]he essential elements in illegal possession of dangerous
drugs are (1) the accused is in possession of an item or object that is identified to be a
prohibited drug; (2) such possession is not authorized by law; and (3) the accused freely and
consciously possess the said drug. All the aforementioned essential elements in illegal
possession of dangerous drugs were proven in this case.”

4. People vs. Posada & Posada, G.R. No. 196052, September 2, 2015. In the early
morning of April 8, 2006, PO1 Jigger Tacorda (PO1 Tacorda), PO3 Raul Santos (PO3
Santos), and other police officers went to the house of the Posadas in Virac, Catanduanes, to
implement a search warrant. After the search warrant was read, accused-appellant Francisco
Posada (Francisco) argued with the police officers though later insisted that he be allowed to
have breakfast before anything else. While PO1 Tacorda and Kagawad Eva Sarmiento (Kag.
Sarmiento) were escorting him to the nearby eatery, they saw him throw something on the
pavement. PO1 Tacorda immediately accosted and reprimanded Francisco while Kag.
Sarmiento picked up the plastic sachets containing white crystalline substance. A total of thirty

58
seven (37) sachets were recovered from the pavement which were photographed by PO3
Santos, and then were turned over to the crime laboratory for inventory, documentation, and
examination. The results of the examination of the contents of the thirty-seven (37) plastic
sachets done in the crime laboratory showed that these contained shabu. Thereafter, Kag. Jena
Arcilla (Kag. Arcilla) and accused-appellant Jocelyn Posada (Jocelyn) accompanied P/Supt.
Samuel Villamer, PO1 Julius Jacinto (PO1 Jacinto), PO1 Arlan Sevilla (PO1 Sevilla), and PO1
Tacorda to the place designated in the search warrant. While searching the kitchen, PO1
Jacinto came upon a plastic bag of charcoal near the stove. He examined its contents and found
a matchbox hidden between the pieces of charcoal. Inside the matchbox were five (5) heat-
sealed plastic transparent sachets containing white crystalline substance. PO3 Santos
photographed the plastic sachets and then turned these over for inventory and documentation.
Upon examination of the contents of the five (5) plastic sachets in the crime laboratory, the
forensic chemist found that they likewise contained shabu.

The Supreme Court sustained the conviction of the Francisco and Jocelyn. “For the
successful prosecution of illegal possession of dangerous drugs the following essential
elements must be established: (a) the accused is in possession of an item or object that is
identified to be a prohibited or dangerous drug; (b) such possession is not authorized by law;
and (c) the accused freely and consciously possesses the said drug. In this case, the prosecution
was able to establish the presence of all the required elements for violation of Section 11,
Article II of Republic Act No. 9165…From these established facts, it is clear that Francisco
and Jocelyn knowingly possessed shabu – a prohibited drug – without legal authority to do so
in violation of Section 11, Article II of Republic Act No. 9165.”

CASES OF INVALID ARREST, SEARCH AND SEIZURE

In the following cases, the Supreme Court invalidated the arrest of the accused and
consequently, excluded the confiscated drugs as evidence for the State, viz:

1. Comerciante vs. People, G.R. No. 205926, July 22, 2015

At around 10 o’clock in the evening of July 30, 2003, Agent Eduardo Radan (Agent
Radan) of the NARCOTICS Group and PO3 Bienvy Calag II (PO3 Calag) were aboard a
motorcycle, patrolling the area while on their way to visit a friend at Private Road, Barangay
Hulo, Mandaluyong City. Cruising at a speed of 30 kilometers per hour along Private Road,
they spotted, at a distance of about 10 meters, two (2) men - later identified as Alvin
Comerciante (Comerciante) and a certain Erick Dasilla (Dasilla) - standing and showing
“improper and unpleasant movements,” with one of them handing plastic sachets to the other.
Thinking that the sachets may contain shabu, they immediately stopped and approached
Comerciante and Dasilla. At a distance of around five (5) meters, PO3 Calag introduced
himself as a police officer, arrested Comerciante and Dasilla, and confiscated two (2) plastic
sachets containing white crystalline substance from them. A laboratory examination later
confirmed that said sachets contained methamphetamine hydrochloride or shabu.

The Supreme Court ruled that “a judicious review of the factual milieu of the instant
case reveals that there could have been no lawful warrantless arrest made on Comerciante. PO3

59
Calag himself admitted that he was aboard a motorcycle cruising at a speed of around 30
kilometers per hour when he saw Comerciante and Dasilla standing around and showing
“improper and unpleasant movements,” with one of them handing plastic sachets to the other.
On the basis of the foregoing, he decided to effect an arrest... The Court finds it highly
implausible that P03 Calag, even assuming that he has perfect vision, would be able to identify
with reasonable accuracy - especially from a distance of around 10 meters, and while aboard a
motorcycle cruising at a speed of 30 kilometers per hour - miniscule amounts of white
crystalline substance inside two (2) very small plastic sachets held by Comerciante. The Court
also notes that no other overt act could be properly attributed to Comerciante as to rouse
suspicion in the mind of PO3 Calag that the former had just committed, was committing, or
was about to commit a crime. Verily, the acts of standing around with a companion and
handing over something to the latter cannot in any way be considered criminal acts. In fact,
even if Comerciante and his companion were showing “improper and unpleasant movements”
as put by PO3 Calag, the same would not have been sufficient in order to effect a lawful
warrantless arrest under Section 5 (a), Rule 113 of the Revised Rules on Criminal
Procedure. That his reasonable suspicion bolstered by (a) the fact that he had seen his fellow
officers arrest persons in possession of shabu; and (b) his trainings and seminars on illegal
drugs when he was still assigned in the province are insufficient to create a conclusion that
what he purportedly saw in Comerciante was indeed shabu.”

2. People vs. Villareal, G.R. No. 201363, March 18, 2013

PO3 Renato de Leon (PO3 de Leon) was driving his motorcycle on his way home along
5th Avenue at around 11:30 in the morning when he saw Villareal from a distance of about 8 to
10 meters, holding and scrutinizing in his hand a plastic sachet of shabu. Thus, PO3 de Leon, a
member of the Station Anti-Illegal Drugs-Special Operation Unit (SAID-SOU) in Caloocan
City, alighted from his motorcycle and approached Villareal whom he recognized as someone
he had previously arrested for illegal drug possession. Upon seeing PO3 de Leon, Villareal
tried to escape but was quickly apprehended with the help of a tricycle driver. PO3 de Leon
was able to board Villareal onto his motorcycle and confiscate the plastic sachet of shabu in his
possession.

The Supreme Court acquitted the accused by ruling:

“A punctilious assessment of the factual backdrop of this case shows that

there could have been no lawful warrantless arrest.

x x x [t]he Court finds it inconceivable how PO3 de Leon, even with his
presumably perfect vision, would be able to identify with reasonable accuracy,
from a distance of about 8 to 10 meters and while simultaneously driving a
motorcycle, a negligible and minuscule amount of powdery substance (0.03 gram)
inside the plastic sachet allegedly held by appellant. That he had previously
effected numerous arrests, all involving shabu, is insufficient to create a conclusion
that what he purportedly saw in appellant’s hands was indeed shabu.

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 “Furthermore, appellant’s act of darting away when PO3 de Leon approached
him should not be construed against him. Flight per se is not synonymous with
guilt and must not always be attributed to one’s consciousness of guilt. It is not a
reliable indicator of guilt without other circumstances, for even in high crime areas
there are many innocent reasons for flight, including fear of retribution for speaking
to officers, unwillingness to appear as witnesses, and fear of being wrongfully
apprehended as a guilty party. Thus, appellant’s attempt to run away from PO3 de
Leon is susceptible of various explanations; it could easily have meant guilt just as
it could likewise signify innocence.”

“ In fine, appellant’s acts of walking along the street and holding something in
his hands, even if they appeared to be dubious, coupled with his previous criminal
charge for the same offense, are not by themselves sufficient to incite suspicion of
criminal activity or to create probable cause enough to justify a warrantless arrest
under Section 5 above-quoted.

xxx xxx xxx

Consequently, there being no lawful warrantless arrest, the shabu purportedly

seized from appellant is rendered inadmissible in evidence for being the proverbial
fruit of the poisonous tree. As the confiscated shabu is the very corpus delicti of the
crime charged, appellant must be acquitted and exonerated from all criminal
liability.”

3. Sindac vs. People, 802 SCRA 270, September 6, 2016

The Philippine National Police, Real, Quezon (PNP Real), conducted surveillance
operations on the alleged drug trade of Elmer Sindac (Sindac). At around 7 o’clock in the
morning of April 17, 2007, the PNP Real conducted a briefing, and thereafter, proceeded to the
port of Barangay Ungos. There, PO3 Bonifacio Peñamora (PO3 Peñamora) and PO1 Erbert
Asis (PO1 Asis) saw Sindac headed for Barangay Poblacion Uno, prompting them to follow
him. Along the national road of said barangay, PO3 Peñamora and PO1 Asis saw Sindac meet
with a certain Alladin Cañon (Cañon) who sold and handed over a plastic sachet to him.
Suspecting that the sachet contained shabu, PO3 Peñamora and PO1 Asis rushed to the scene
and introduced themselves as police officers. Cañon escaped but the policemen were able to
apprehend Sindac. When ordered to empty his pocket, Sindac brought out his wallet which
contained a small plastic sachet containing white crystalline substance. After initially
determining that such substance is shabu, the policemen arrested Sindac and brought him to the
police station. The Supreme Court held that:

“In this case, the Court finds that there could have been no lawful warrantless
arrest made on the person of Sindac. Based on the records, the arresting officer,
PO3 Peñamora, himself admitted that he was about five (5) to ten (10) meters away
from Sindac and Cañon when the latter allegedly handed a plastic sachet to the
former. Suspecting that the sachet contained shabu, he and PO1 Asis rushed to
Sindac to arrest him.”

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 xxx xxx xxx

“Considering that PO3 Peñamora was at a considerable distance away from

the alleged criminal transaction (five [5] to ten [10] meters), not to mention the
atomity of the object thereof (0.04 gram of white crystalline substance contained in
a plastic sachet), the Court finds it highly doubtful that said arresting officer was
able to reasonably ascertain that any criminal activity was afoot so as to prompt
him to conduct a lawful in flagrante delicto arrest and, thereupon, a warrantless
search. x x x In this relation, it should also be pointed out that no criminal overt act
could be properly attributed to Sindac so as to rouse any reasonable suspicion in the
mind of either PO3 Peñamora or PO1 Asis that Sindac had just committed, was
committing, or was about to commit a crime. Sindac’s actuations of talking to and
later on, receiving an unidentified object from Cañon, without more, should not be
considered as ongoing criminal activity that would render proper an in flagrante
delicto arrest under Section 5 (a), Rule 113 of the Revised Rules of Criminal
Procedure.”

xxx xxx xxx

“As a consequence of the Sindac’s unlawful arrest, it follows that there could
be no valid search incidental to a lawful arrest which had yielded the plastic sachet
containing 0.04 gram of shabu from Sindac. Notably, while it is true that Sindac: (a)
failed to question the legality of the warrantless arrest against him before
arraignment; and (b) actively participated in the trial of the case, it must nevertheless
be clarified that the foregoing constitutes a waiver ONLY as to any question
concerning any defects in his arrest, AND NOT with regard to the inadmissibility of
the evidence seized during an illegal warrantless arrest.”

4. People vs. Aruta, G.R. No. 120915, April 3, 1998

P/Lt. Ernesto Abello (P/Lt. Abello) was tipped off by his informant, that a certain “Aling
Rosa” would be arriving from Baguio City the following day, December 14, 1988, with a large
volume of marijuana. Acting on said tip, P/Lt. Abello assembled a team composed of five (5)
operatives. Said team proceeded to West Bajac-Bajac, Olongapo City at around 4:00 in the
afternoon of December 14, 1988 and deployed themselves near the Philippine National
Bank (PNB) building along Rizal Avenue and the Caltex gasoline station. Dividing themselves
into two (2) groups with one (1) group made up of P/Lt. Abello, P/Lt. Jose Domingo (P/Lt.
Domingo) and the informant posted themselves near the PNB building and the other group
waited near the Caltex gasoline station. While thus positioned, a Victory Liner Bus with body
number 474 stopped in front of the PNB building at around 6:30 in the evening of the same day
from where two (2) females and a male got off. It was at this stage that the informant pointed
out to the team “Aling Rosa” who was then carrying a travelling bag. The team approached her
and introduced themselves as NARCOM agents. When P/Lt. Abello asked “Aling Rosa” about
the contents of her bag, the latter handed it to the former. Upon inspection, the bag was found
to contain dried marijuana leaves packed in a plastic bag. The team confiscated the bag to

62
which P/Lt. Domingo affixed his signature. “Aling Rosa” was then brought to the NARCOM
office for investigation where a Receipt of Property Seized was prepared for the confiscated
marijuana leaves.
The Supreme Court acquitted the accused. It held that:

“Accused-appellant Aruta cannot be said to be committing a crime. Neither

was she about to commit one nor had she just committed a crime. Accused-
appellant was merely crossing the street and was not acting in any manner that
would engender a reasonable ground for the NARCOM agents to suspect and
conclude that she was committing a crime. It was only when the informant
pointed to accused-appellant and identified her to the agents as the carrier of the
marijuana that she was singled out as the suspect. The NARCOM agents would
not have apprehended accused-appellant were it not for the furtive finger of the
informant because, as clearly illustrated by the evidence on record, there was no
reason whatsoever for them to suspect that accused-appellant was committing a
crime, except for the pointing finger of the informant. This, the Court could
neither sanction nor tolerate as it is a clear violation of the constitutional
guarantee against unreasonable search and seizure. Neither was there any
semblance of any compliance with the rigid requirements of probable cause and
warrantless arrests.

Consequently, there was no legal basis for the NARCOM agents to effect a
warrantless search of accused-appellants bag, there being no probable cause and
the accused-appellant not having been lawfully arrested. Stated otherwise, the
arrest being incipiently illegal, it logically follows that the subsequent search
was similarly illegal, it being not incidental to a lawful arrest. The constitutional
guarantee against unreasonable search and seizure must perforce operate in
favor of accused-appellant. As such, the articles seized could not be used as
evidence against accused-appellant for these are fruits of a poisoned tree and,
therefore, must be rejected, pursuant to Article III, Sec. 3(2) of the
Constitution.”

5. People vs. Cogaed, G.R. No. 200334, July 30, 2014

PSI Sofronio Bayan (PSI Bayan) of the San Gabriel Police Station in San Gabriel, La
Union, “received a text message from an unidentified civilian informer” that one Marvin Buya
would be transporting marijuana from Barangay Lun-Oy to the Poblacion of San Gabriel, La
Union. PSI Bayan organized checkpoints in order to intercept the suspect. A passenger jeepney
from Barangay Lun-Oy arrived at SPO1 Jaime Taracatac’s checkpoint. The jeepney driver
disembarked and signalled to SPO1 Jaime Taracatac (SPO1 Taracatac) indicating the two (2)
male passengers who were carrying marijuana. SPO1 Taracatac approached the two (2) male
passengers who were later identified as Victor Romana Cogaed (Cogaed) and Santiago Sacpa
Dayao (Dayao). Cogaed was carrying a blue bag and a sack while Dayao was holding a yellow
bag. SPO1 Taracatac asked Cogaed and Dayao about the contents of their bags. Cogaed and
Dayao told SPO1 Taracatac that they did not know since they were transporting the bags as a
favor for their barriomate named Marvin. After this exchange, Cogaed opened the blue bag,

63
revealing three (3) bricks of what looked like marijuana. SPO1 Taracatac arrested Cogaed and
Dayao and brought them to the police station. While at the police station, the Chief of Police
and Investigator PO3 Stanley Campit (PO3 Campit) requested Cogaed and Dayao to empty
their bags. Inside Cogaed’s sack was four (4) rolled pieces of suspected marijuana fruiting
tops and inside Dayao’s yellow bag was a brick of suspected marijuana.

The Supreme Court acquitted Cogaed in this case. Cogaed was “simply a passenger
carrying a bag and traveling aboard a jeepney. There was nothing suspicious, moreover,
criminal, about riding a jeepney or carrying a bag. The assessment of suspicion was not made
by the police officer but by the jeepney driver. It was the driver who signalled to the police that
Cogaed was “suspicious.”… The apprehension of Cogaed was not effected with a warrant of
arrest. None of the instances enumerated in Rule 113, Section 5 of the Rules of Court were
present when the arrest was made. At the time of his apprehension, Cogaed has not committed,
was not committing, or was about to commit a crime. As in People v. Chua, for a warrantless
arrest of in flagrante delicto to be affected, “two elements must concur: (1) the person to be
arrested must execute an overt act indicating that he has just committed, is actually committing,
or is attempting to commit a crime; and (2) such overt act is done inthe presence or within the
view of the arresting officer. Both elements were missing when Cogaed was arrested. There
were no overt acts within plain view of the police officers that suggested that Cogaed was in
possession of drugs at that time.”

6. Miguel vs. People, G.R. No. 227038, July 31, 2017

At around 12:45 o’clock in the morning of May 24, 2010, a Bantay Bayan operative of
Barangay San Antonio Village, Makati City named Reynaldo Bahoyo (BB Bahoyo) was doing
his rounds when he purportedly received a report of a man showing off his private parts in
Kaong Street. BB Bahoyo and fellow Bantay Bayan operative Mark Anthony Velasquez (BB
Velasquez) then went to the said street and saw a visibly intoxicated person, which they later
identified as Jeffrey Miguel (Miguel), urinating and displaying his private parts while standing
in front of a gate enclosing an empty lot. BB Bahoyo and BB Velasquez approached Miguel
and asked him where he lived, and the latter answered Kaong Street. BB Bahoyo asked for an
identification card, but Miguel failed to produce one. Miguel emptied his pockets, revealing a
pack of cigarettes containing one (1) stick of cigarette and two (2) pieces of rolled paper
containing dried marijuana leaves, among others. This prompted BB Bahoyo and BB
Velasquez to seize the foregoing items, take Miguel to the police station, and turn him, as well
as the seized items, over to SPO3 Rafael Castillo (SPO3 Castillo). SPO3 Castillo then
inventoried, marked, and photographed the seized items, all in the presence of BB Bahoyo and
BB Velasquez, and thereafter, prepared an inventory report and a request for qualitative
examination of the seized two (2) pieces of rolled paper. After examination, it was confirmed
that the aforesaid rolled paper contained marijuana.

The Supreme Court held that a Barangay Tanod and the Barangay Chairman were
deemed as law enforcement officers for purposes of applying Article III of the Constitution.
In People v. Lauga, it was held that a “bantay bayan,” in relation to the authority to conduct a
custodial investigation under Article III, Section 12 of the Constitution, “has the color of a

64
state-related function and objective insofar as the entitlement of a suspect to his constitutional
rights.”

“In this light, the Court is convinced that the acts of the Bantay Bayan - or any
barangay-based or other volunteer organizations in the nature of watch groups - relating to the
preservation of peace and order in their respective areas have the color of a state-related
function. As such, they should be deemed as law enforcement authorities for the purpose of
applying the Bill of Rights under Article III of the 1987 Constitution to them.”

“The Court is inclined to believe that at around past 12 o’clock in the early morning of
May 24, 2010, petitioner went out to the street to urinate when the Bantay Bayan operatives
chanced upon him. The latter then approached and questioned petitioner, and thereafter, went
on to search his person, which purportedly yielded the marijuana seized from him. Verily, the
prosecution’s claim that petitioner was showing off his private parts was belied by the
aforesaid testimonies. Clearly, these circumstances do not justify the conduct of an in flagrante
delicto arrest, considering that there was no overt act constituting a crime committed by
petitioner in the presence or within the view of the arresting officer. Neither do these
circumstances necessitate a “hot pursuit” warrantless arrest as the arresting Bantay
Bayan operatives do not have any personal knowledge of facts that petitioner had just
committed an offense… All told, the Bantay Bayan operatives conducted an illegal search on
the person of petitioner. Consequently, the marijuana purportedly seized from him on account
of such search is rendered inadmissible in evidence pursuant to the exclusionary rule under
Section 3 (2), Article III of the 1987 Constitution. Since the confiscated marijuana is the
very corpus delicti of the crime charged, petitioner must necessarily be acquitted and
exonerated from criminal liability.”

7. Luz vs. People, G.R. No. 197788, February 29, 2012

PO2 Emmanuel L. Alteza (PO2 Alteza), who was then assigned at the Sub-Station 1 of
the Naga City Police Station as a traffic enforcer, saw the accused driving a motorcycle without
a helmet. This prompted him to flag down the accused for violating a municipal ordinance
which requires all motorcycle drivers to wear helmets while driving said motor vehicle. PO2
Alteza then invited the accused to come inside their sub-station since the place where he
flagged down the accused is almost in front of the said sub-station. While he and SPO1
Rayford Brillante were issuing a citation ticket for violation of municipal ordinance, he noticed
that the accused was uneasy and kept on getting something from his jacket. He was alerted and
so, he told the accused to take out the contents of the pocket of his jacket as the latter may have
a weapon inside it. The accused obliged and slowly put out the contents of the pocket of his
jacket which was a metal container. Upon seeing the said container, he asked the accused to
open it. The accused spilled out the contents of the container on the table which turned out to
be four (4) plastic sachets, the two (2) of which were empty while the other two (2) contained
suspected shabu.

It was held that the accused was not validly arrested. “When he was flagged down for
committing a traffic violation, he was not, ipso facto and solely for this reason, arrested.”

65
 “Arrest is the taking of a person into custody in order that he or she may be bound to
answer for the commission of an offense. It is effected by an actual restraint of the person to be
arrested or by that person’s voluntary submission to the custody of the one making the arrest.
Neither the application of actual force, manual touching of the body, or physical restraint, nor a
formal declaration of arrest, is required. It is enough that there be an intention on the part of
one of the parties to arrest the other, and that there be an intent on the part of the other to
submit, under the belief and impression that submission is necessary.”

“Under R.A. 4136, or the Land Transportation and Traffic Code, the general procedure
for dealing with a traffic violation is not the arrest of the offender, but the confiscation of the
driver’s license of the latter…”

“Similarly, the Philippine National Police (PNP) Operations Manual provides the
following procedure for flagging down vehicles during the conduct of checkpoints:

“SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in

Mobile Car. This rule is a general concept and will not apply in hot pursuit
operations. The mobile car crew shall undertake the following, when applicable:
xxx

m. If it concerns traffic violations, immediately issue a Traffic Citation

Ticket (TCT) or Traffic Violation Report (TVR). Never indulge in prolonged,
unnecessary conversation or argument with the driver or any of the vehicle’s
occupants.”

“At the time that he was waiting for PO3 Alteza to write his citation ticket, petitioner
could not be said to have been under arrest. There was no intention on the part of PO3 Alteza
to arrest him, deprive him of his liberty, or take him into custody. Prior to the issuance of the
ticket, the period during which petitioner was at the police station may be characterized merely
as waiting time. In fact, as found by the trial court, PO3 Alteza himself testified that the only
reason they went to the police sub-station was that petitioner had been flagged down “almost in
front” of that place. Hence, it was only for the sake of convenience that they were waiting
there. There was no intention to take petitioner into custody.”

“It also appears that, according to City Ordinance No. 98-012, which was violated by
petitioner, the failure to wear a crash helmet while riding a motorcycle is penalized by a fine
only. Under the Rules of Court, a warrant of arrest need not be issued if the information or
charge was filed for an offense penalized by a fine only. It may be stated as a corollary that
neither can a warrantless arrest be made for such an offense.”

8. Sanchez vs. People, 741 SCRA 294, November 19, 2014

Acting on the information that Jacinta Marciano (Jacinta), aka “Intang,” was selling
drugs to tricycle drivers, SPO1 Elmer Amposta (SPO1 Amposta), together with CSU Edmundo
Hernandez, CSU Jose Tagle, Jr., and CSU Samuel Monzon, was dispatched to Barangay
Alapan 1-B, Imus, Cavite to conduct an operation. While at the place, the group waited for a

66
tricycle going to, and coming from, the house of Jacinta. After a few minutes, they spotted a
tricycle carrying Rizaldy Sanchez (Sanchez) coming out of the house. The group chased the
tricycle and after catching up with it, they requested Sanchez to alight. It was then that they
noticed Sanchez holding a match box. SPO1 Amposta asked Rizaldy if he could see the
contents of the match box to which Sanchez agreed. While examining it, SPO1 Amposta found
a small transparent plastic sachet which contained a white crystalline substance. Suspecting
that the substance was a regulated drug, the group accosted Sanchez and the tricycle driver.
The group brought the two (2) to the police station.

The Supreme Court acquitted the accused. Thus:

“In the case at bench, neither the in flagrante delicto arrest nor the stop-
and-frisk principle was applicable to justify the warrantless search and seizure
made by the police operatives on Sanchez. An assiduous scrutiny of the factual
backdrop of this case shows that the search and seizure on Sanchez was
unlawful.”

“A search as an incident to a lawful arrest is sanctioned by the Rules of

Court. It bears emphasis that the law requires that the search be incidental to a
lawful arrest. Therefore it is beyond cavil that a lawful arrest must precede the
search of a person and his belongings; the process cannot be reversed.”

“Here, the search preceded the arrest of Sanchez. There was no arrest
prior to the conduct of the search. Arrest is defined under Section 1, Rule 113 of
the Rules of Court as the taking of a person into custody that he may be bound
to answer for the commission of an offense. Under Section 2, of the same rule,
an arrest is effected by an actual restraint of the person to be arrested or by his
voluntary submission to the custody of the person making the arrest. Even
casting aside the petitioner’s version and basing the resolution of this case on
the general thrust of the prosecution evidence, no arrest was effected by the
police operatives upon the person of Sanchez before conducting the search on
him… The arrest of Sanchez was made only after the discovery by SPO1
Amposta of the shabu inside the match box. Evidently, what happened in this
case was that a search was first undertaken and then later an arrest was effected
based on the evidence produced by the search.”

“Even granting arguendo that Sanchez was arrested before the search,
still the warrantless search and seizure must be struck down as illegal because
the warrantless arrest was unlawful. x x x”

“The evidence on record reveals that no overt physical act could be

properly attributed to Sanchez as to rouse suspicion in the minds of the police
operatives that he had just committed, was committing, or was about to commit
a crime. Sanchez was merely seen by the police operatives leaving the residence
of a known drug peddler, and boarding a tricycle that proceeded towards the
direction of Kawit, Cavite. Such acts cannot in any way be considered criminal

67
 acts. In fact, even if Sanchez had exhibited unusual or strange acts, or at the
very least appeared suspicious, the same would not have been considered overt
acts in order for the police officers to effect a lawful warrantless arrest under
paragraph (a) of Section 5, Rule 113.”

Section 12. Possession of Equipment, Instrument, Apparatus and

Other Paraphernalia for Dangerous Drugs. - The penalty of imprisonment
ranging from six (6) months and one (1) day to four (4) years and a fine
ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos
(P50,000.00) shall be imposed upon any person, who, unless authorized
by law, shall possess or have under his/her control any equipment,
instrument, apparatus and other paraphernalia fit or intended for smoking,
consuming, administering, injecting, ingesting, or introducing any
dangerous drug into the body: Provided, That in the case of medical
practitioners and various professionals who are required to carry such
equipment, instrument, apparatus and other paraphernalia in the practice
of their profession, the Board shall prescribe the necessary implementing
guidelines thereof.

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.
NOTES

The elements of illegal possession of equipment, instrument, apparatus and other

paraphernalia for dangerous drugs under Section 12, Article II of R.A. No. 9165 are: (1)
possession or control by the accused of any equipment, apparatus or other paraphernalia fit or
intended for smoking, consuming, administering, injecting, ingesting, or introducing any
dangerous drug into the body; and (2) such possession is not authorized by law (Saraum vs.
People, G.R. No. 205472, January 25, 2016).

In Saraum supra, it was held that there is “no necessity to make a laboratory
examination and finding as to the presence or absence of methamphetamine hydrochloride or
any illegal substances on said items since possession itself is the punishable act”.

On August 17, 2006, a telephone call was received by PO3 Jeffrey Larrobis (PO3
Larrobis) regarding the illegal drug activities in Sitio Camansi, Barangay Lorega, Cebu City. A
buy-bust team was then formed composed of PO3 Larrobis, PO1 Romeo Jumalon (PO1

68
Jumalon), PO2 Nathaniel Sta. Ana (PO2 Sta. Ana), PO1 Roy Cabahug, and PO1 Julius Aniñon
(PO1 Aniñon) against a certain “Pata.” PO2 Sta. Ana was designated as the poseur-buyer
accompanied by the informant, PO1 Jumalon as the back-up of PO2 Sta. Ana, and the rest of
the team as the perimeter security. PO1 Aniñon coordinated with the Philippine Drug
Enforcement Agency (PDEA) regarding the operation. After preparing all the necessary
documents, such as the pre-operation report and submitting the same to the PDEA, the team
proceeded to the subject area.

During the operation, “Pata” eluded arrest as he tried to run towards his shanty. Inside
the house, which was divided with a curtain as partition, the buy-bust team also saw Amado
Saraum (Saraum) and Peter Esperanza (Esperanza), who were holding drug paraphernalia
apparently in preparation to have a “shabu” pot session. They recovered from Saraum’s
possession a lighter, rolled tissue paper, and aluminum tin foil (tooter). PO3 Larrobis
confiscated the items, placed them in the plastic pack of misua wrapper, and made initial
markings (“A” for Saraum and “P” for Esperanza). At the police station, PO3 Larrobis marked
as “AIS-08-17-2006” the paraphernalia recovered from Saraum.

The Supreme Court held that “the elements of illegal possession of equipment,
instrument, apparatus and other paraphernalia for dangerous drugs under Section 12, Article II
of R.A. No. 9165 are: (1) possession or control by the accused of any equipment, apparatus or
other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting,
or introducing any dangerous drug into the body; and (2) such possession is not authorized by
law. In this case, the prosecution has convincingly established that Saraum was in possession
of drug paraphernalia, particularly aluminum tin foil, rolled tissue paper, and lighter, all of
which were offered and admitted in evidence… PO3 Larrobis described in detail how they
were able to apprehend him, who was then holding a disposable lighter in his right hand and a
tin foil and a rolled tissue paper in his left hand, while they were in the course of arresting
somebody. Saraum did not proffer any satisfactory explanation with regard to his presence at
the vicinity of the buy-bust operation and his possession of the seized items that he claims to
have “countless, lawful uses.” On the contrary, the prosecution witnesses have adequately
explained the respective uses of the items to prove that they were indeed drug paraphernalia.
There is, thus, no necessity to make a laboratory examination and finding as to the presence or
absence of methamphetamine hydrochloride or any illegal substances on said items since
possession itself is the punishable act.

Section 13. Possession of Dangerous Drugs During Parties, Social

Gatherings or Meetings. - Any person found possessing any dangerous
drug during a party, or at a social gathering or meeting, or in the
proximate company of at least two (2) persons, shall suffer the maximum
penalties provided for in Section 11 of this Act, regardless of the quantity
and purity of such dangerous drugs.
NOTES

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 “…[T]o qualify possession of illegal drugs as warranting the imposition of stiffer
penalties pursuant to Section 13, Article II of RA 9165, with which petitioners were charged,
such possession must have occurred: (a) during a party; or (b) at a social gathering or
meeting; or (c) in the proximate company of at least two (2) persons (Plan and Enolva vs.
People. G.R. No. 247589, August 24, 2020).

In Plan and Enolva vs. People. supra, the Supreme Court held that for persons to be
held liable under this provision, it is not necessary that they be caught during a pot session.

On March 31, 2017, members of the Philippine National Police, Police Station 7,
Cubao, Quezon City, were dispatched to conduct Oplan Galugad at 33 1st Palanas St., Bo.
Camp Panopio Compound, Brgy. Kaunlaran, Quezon City, after receiving information about
persons playing cara y cruz where wagers supposedly included illegal drugs. Upon arrival
thereat, they saw five (5) male persons playing cara y cruz and immediately arrested said
persons for violation of Presidential Decree No. 1602 (Illegal Gambling). Arresting officer
PO1 Stanley de Guzman (PO1 de Guzman) frisked Robert Plan, Jr. and Mark Oliver Enolva
(petitioners) and recovered from each of them a plastic sachet containing white crystalline
substance, as well as two (2) cellphones purportedly containing messages about drug
transactions. Thereafter, the seized items were marked, inventoried, and photographed at the
place of arrest in the presence of Barangay Kagawad Nenita Dordas (Kagawad Dordas), and
media representatives Earlo Bringas of Net 25 (Bringas), Jopel Pelenio of DWIZ (Pelenio), and
Bam Alegre of GMA 7 (Alegre). Petitioners and the other suspects, together with the seized
items, were brought to the police station. Subsequently, the seized sachets from petitioners
bearing the markings “SDG/RP 3/31/17” and “SDG/ME 3/31/17” were brought to the crime
laboratory, where, after examination, the contents tested positive for 6.10 grams and 0.71 gram,
respectively, of methamphetamine hydrochloride or shabu, a dangerous drug.

In a Joint Decision dated December 27, 2017, the RTC found petitioners guilty beyond
reasonable doubt of violating Section 13, Article II of RA 9165. The Court of Appeals,
however, found the petitioners liable of violating Section 11, Article II of RA 9165 because the
petitioners were not shown to have intended to use the illegal drugs while playing.

The Supreme Court held that “[t]o convict an accused for Illegal Possession of
Dangerous Drugs, the prosecution must establish the necessary elements thereof, to wit: (a) the
accused was in possession of an item or object identified as a prohibited drug; (b) such
possession was not authorized by law; and (c) the accused freely and consciously possessed the
said drug.”

“Here, the courts a quo correctly ruled that the prosecution was able to establish with
moral certainty all the foregoing elements, considering that: (a) by virtue of petitioners’ arrest
for playing cara y cruz, the police officers recovered, among others, two (2) plastic sachets
of shabu from their possession; (b) petitioners failed to prove that their possession of the seized
items was authorized by law; and (c) petitioners freely and consciously possessed the same.”

“However, the Court finds that the CA erred in finding petitioners guilty of only
Section 11, and not Section 13, Article II of RA 9165, on the notion that while they were

70
playing cara y cruz “in the proximate company of at least two (2) persons,” it was not shown
that such occasion was meant for using drugs, as in a pot session.”

“…[T]o qualify possession of illegal drugs as warranting the imposition of stiffer

penalties pursuant to Section 13, Article II of RA 9165, with which petitioners were charged,
such possession must have occurred: (a) during a party; or (b) at a social gathering or
meeting; or (c) in the proximate company of at least two (2) persons.”

“As may be gleaned from the explicit wording of the provision, nowhere does the law
qualify that the above-stated instances must have been intended for the purpose of using illegal
drugs. In fact, under Section 13, Article II of the Implementing Rules and Regulations (IRR) of
RA 9165, the phrase “company of at least two (2) persons” was defined to “mean the accused
or suspect plus at least two (2) others, who may or may not be in possession of any dangerous
drug.” This means that the only qualification for the provision to trigger is that the accused or
suspect possessed illegal drugs in the proximate company of such persons who may or may not
be in possession of any dangerous drugs. With the foregoing in mind, the CA therefore unduly
restricted the meaning of the phrase “in the proximate company of at least two (2) persons” in
Section 13, Article II of RA 9165 to merely contemplate “pot sessions.”

“In this regard, the Court discerns that the apparent purpose of Section 13, Article II of
RA 9165 is to deter the proliferation of prohibited drugs to other persons. Possession of
dangerous drugs is a crime in itself; but when the possessor is found in a situation where there
is a tendency or opportunity to proliferate drugs to other persons, either through direct peddling
or even some indirect influence, the gravity of the crime is exacerbated. In addition, when one
possesses dangerous drugs, there is always a chance that the possessor uses and consequently,
becomes “under the influence.” Thus, in the circumstances stated in Section 13, Article II of
RA 9165, the possessor does not only become an imminent threat to his own safety and well-
being, but also to other people within his close proximity; hence, the stiffer penalties.”

“In this case, petitioners were found in possession of illegal drugs incidental to their
arrest for playing cara y cruz with three (3) other persons, or “in the proximate company of at
least two (2) persons,” warranting the imposition of the maximum penalties provided for in
Section 11, pursuant to Section 13, Article II of RA 9165. Notably, the imposition of the
maximum penalties was expressly stated to be regardless of the quantity and purity of such
dangerous drugs. Under Section 11, the maximum penalty that may be imposed upon any
person who shall possess any dangerous drug without authority is life imprisonment to death,
and a fine ranging from P500,000.00 to P10,000,000.00.”

Section 14. Possession of Equipment, Instrument, Apparatus and

Other Paraphernalia for Dangerous Drugs During Parties, Social
Gatherings or Meetings. - The maximum penalty provided for in Section
12 of this Act shall be imposed upon any person, who shall possess or
have under his/her control any equipment, instrument, apparatus and
other paraphernalia fit or intended for smoking, consuming, administering,

71
injecting, ingesting, or introducing any dangerous drug into the body,
during parties, social gatherings or meetings, or in the proximate company
of at least two (2) persons.
NOTES

“Illegal possession of equipment, instrument, apparatus and other paraphernalia for

dangerous drugs during parties, social gatherings or meetings under Section 14 of R.A. No.
9165 is a crime of malum prohibitum, that is, the act is made wrong or evil because there is a
law prohibiting it. x x x” (People vs. Collado et al, G.R. No. 185719, June 17, 2013).

In People vs. Collado, supra, PO2 Richard Noble (PO2 Noble) received information
from a civilian asset that spouses Marcelino Collado and Myra Collado were engaged in selling
shabu. A buy-bust operation team was thereafter formed. After coordinating with the
Philippine Drug Enforcement Agency, the team proceeded to Marcelino’s and Myra’s
residence. Upon reaching the target area, the asset introduced PO2 Noble to Marcelino as a
regular buyer of shabu. When asked how much shabu he needed, PO2 Noble replied,
“dalawang piso,” which means ₱200.00 worth of drugs. But when PO2 Noble was handing
over the marked money to Marcelino, the latter motioned that the same be given to his wife,
Myra, who accepted the money. Marcelino then took from his pocket a small metal container
from which he brought out a small plastic sachet containing white crystalline substance and
gave the same to PO2 Noble. While PO2 Noble was inspecting its contents, he noticed smoke
coming from a table inside the house of the couple around which were seven (7) persons. When
PO2 Noble gave the pre-arranged signal, the backup team rushed to the scene. Simultaneously,
PO2 Noble introduced himself as a policeman and arrested Marcelino. He frisked him and was
able to confiscate the metal container that contained another sachet of white crystalline
substance. PO2 Noble wrote the markings “MCC-RNN October 9, 2004” on both the plastic
sachets of white substance sold to him by Marcelino and the one found inside the metal
container. Meanwhile, SPO2 Bernardo Cruz (SPO2 Cruz) and another police officer went
inside the house of Marcelino and Myra, where they found Apelo, Cipriano, Ranada, Abache,
Sumulong, Madarang and Latario gathered around a table littered with various drug
paraphernalia such as an improvised water pipe, strips of aluminum foil with traces of white
substance, disposable lighters, and plastic sachets. A strip of aluminum foil used for smoking
marijuana was recovered from Ranada. The buy-bust team arrested all these persons, advised
them of their constitutional rights, and brought them to police headquarters for investigation
and drug testing. A chemistry report on all the seized items yielded positive results for
methylamphetamine hydrochloride. Another chemistry report showed Marcelino, Apelo,
Cipriano, and Ranada positive for drug use while Myra, Abache, Sumulong, Madarang, and
Latario were found negative.

The Supreme Court held that “illegal possession of equipment, instrument, apparatus
and other paraphernalia for dangerous drugs during parties, social gatherings or meetings under
Section 14 of R.A. No. 9165 is a crime of malum prohibitum, that is, the act is made wrong or
evil because there is a law prohibiting it. x x x”

72
 But only Ranada should be held liable for violation of Section 14 of RA 9165. “It is
clear that it was only Ranada who was caught having in his possession an aluminum foil
intended for using dangerous drugs. As to the other co-accused, namely Apelo, Abache,
Cipriano, Latario, Madarang, and Sumulong, not one drug paraphernalia was found in their
possession. The police officers were only able to find the other drug paraphernalia scattered on
top of a table. It is already established that there was no conspiracy between Ranada and the
other co-accused.”

Section 15. Use of Dangerous Drugs. – A person apprehended or

arrested, who is found to be positive for use of any dangerous drug, after
a confirmatory test, shall be imposed a penalty of a minimum of six (6)
months rehabilitation in a government center for the first offense, subject
to the provisions of Article VIII of this Act. If apprehended using any
dangerous drug for the second time, he/she shall suffer the penalty of
imprisonment ranging from six (6) years and one (1) day to twelve (12)
years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two
hundred thousand pesos (P200,000.00): Provided, That this Section shall
not be applicable 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 Act, in which case the provisions stated therein shall
apply.
NOTES

The elements of the crime of Use of Dangerous Drugs are: (1) the accused was arrested;
(2) the accused was subjected to a drug test; and (3) the confirmatory test shows that the
accused used a dangerous drugs (Dela Serna, et al vs. People, G.R, No. 241051, October 6,
2019).

In Dela Serna, et al vs. People, supra, SPO3 William Tecson and PO2 Fernando
Ombajin proceeded to a nearby shanty after they conducted a buy bust operation. Thereat, they
saw Alfred Dela Serna (Dela Serna), Rico Lagura (Lagura) and Abundio Josol, Jr. (Josol)
having a pot session. They saw and confiscated drug paraphernalia consisting of one (1) empty
cellophane, one (1) empty sachet, three (3) aluminum foils, one (1) rolled aluminum foil
(improvised tooter) and two (2) lighters. The urine samples of Dela Serna and Lagura tested
positive for the presence of Methamphetamine.

The Supreme Court sustained the conviction of Dela Serna and Lagura. It was
established that “PO2 Ombajin saw Dela Serna, Lagura and Josol engaging in a pot session
inside a shanty which corroborates possible drug use. RA 9165 provides that possession of
drug paraphernalia constitutes prima facie evidence that the possessor has smoked, ingested or
used a dangerous drugs and creates a presumption that the possessor violated Section 15
thereof. As a result of which, there was lawful cause for the arrest of Dela Serna and Lagura.”

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This is the first element of the crime. Dela Serna Serna and Lagura “were required to submit
urine samples for drug testing. When they complied, the second element” was satisfied. “As to
the third element, the Chemistry reports indicate that Dela Serna and Lagura’s urine samples
tested positive for the presence of methamphetamine.”

In People vs. Galicia, G.R. No. 218402, February 14, 2018, it was held that Section 15
does not apply when a person charged with violation of Section 15, Article II, RA 9165 on use
of dangerous drugs, is also found to have possession of such quantity of drugs provided under
Section 11 of the same law. This means that an offender may not be charged separately of
violation of Section 11 on illegal possession of dangerous drugs and of Section 15 on use of
dangerous drug since it is clear from the above that the provisions of Section 11 shall apply.
Illegal possession of dangerous drugs absorbs the use of dangerous drugs.

It was held in People vs. Lopez, G.R. No. 247974, July 13, 2020 that a conviction for
Use of Dangerous Drugs presupposes the prior conduct of an initial screening test and a
subsequent confirmatory test both yielding positive results for illegal drug use. In this case, the
intelligence operatives of the Philippine National Police (PNP) Iriga City conducted a buy bust
operation. When Peter Lopez (Lopez) arrived on a motorcycle and proceeded to ask the
informant how much they would be buying, PO1 Jonard Buenaflor handed P2,000.00 to Lopez.
In turn, the latter gave him a small heat-sealed transparent sachet containing crystalline
substance which the poseur-buyer suspected as shabu. Thereafter, Lopez was arrested and was
required to submit a urine sample. The sample tested positive for methamphetamine
hydrochloride, a dangerous drug.

With respect to the charge for violation of Section 15, the Supreme Court said that “while
Section 15 penalizes a person apprehended or arrested for unlawful acts listed under Article II
of R.A. No. 9165 and who is found to be positive for use of any dangerous drug, a conviction
presupposes the prior conduct of an initial screening test and a subsequent confirmatory test
both yielding positive results for illegal drug use. In this regard, Section 36 of R.A. No. 9165
provides, in part:

“Section 36. Authorized Drug Testing. - Authorized drug testing shall be

done by any government forensic laboratories or by any of the drug testing
laboratories accredited and monitored by the DOH to safeguard the quality of test
results. The DOH shall take steps in setting the price of the drug test with DOH
accredited drug testing centers to further reduce the cost of such drug test. The drug
testing shall employ, among others, two (2) testing methods, the screening test
which will determine the positive result as well as the type of the drug used and the
confirmatory test which will confirm a positive screening test. Drug test certificates
issued by accredited drug testing centers shall be valid for a one-year period from
the date of issue which may be used for other purposes. The following shall be
subjected to undergo drug testing: x x x” (underlining supplied)

Meanwhile, Section 38 of R.A. No. 9165 provides:

74
 “Section 38. Laboratory Examination or Test on Apprehended/Arrested
Offenders. - Subject to Section 15 of this Act, any person apprehended or arrested
for violating the provisions of this Act shall be subjected to screening laboratory
examination or test within twenty-four (24) hours, if the apprehending or arresting
officer has reasonable ground to believe that the person apprehended or arrested, on
account of physical signs or symptoms or other visible or outward manifestation, is
under the influence of dangerous drugs. If found to be positive, the results of the
screening laboratory examination or test shall be challenged within fifteen (15)
days after receipt of the result through a confirmatory test conducted in any
accredited analytical laboratory equipment with a gas chromatograph/mass
spectrometry equipment or some such modern and accepted method, if confirmed
the same shall be prima facie evidence that such person has used dangerous drugs,
which is without prejudice for the prosecution for other violations of the provisions
of this Act: Provided, That a positive screening laboratory test must be confirmed
for it to be valid in a court of law.”

“From the foregoing, two distinct drug tests are required: a screening test and a
confirmatory test. A positive screening test must be confirmed for it to be valid in a court of
law. The evidence for the prosecution, however, shows the conduct of only one test… The test
conducted on the urine specimen of the accused-appellant was a Thin Layer Chromatography
or TLC - a screening test. A screening test is statutorily defined as “[a] rapid test performed to
establish potential/presumptive positive result”. It refers to the immunoassay test to eliminate a
“negative” specimen, i.e., one without the presence of dangerous drugs, from further
consideration and to identify the presumptively positive specimen that requires confirmatory
test. Under existing regulations of the Dangerous Drugs Board, the TLC is a screening test that
is subject to further confirmatory examinations if it yields a positive result… When the urine
sample recovered from Lopez yielded a positive result, the specimen should have been
subjected to a second test - the confirmatory test. R.A. No. 9165 describes the confirmatory test
as “[a]n 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.” It is the second or further analytical procedure to more accurately determine the presence
of dangerous drugs in the specimen. The records are silent on any reference to a second, more
specific, examination on the urine sample… Considering that Chemistry Report No. DTC-081-
201487 merely contains the results of the screening test conducted, the same cannot be valid
before any court of law absent the required confirmatory test report. Without the requisite
confirmatory test, the accused-appellant cannot be held criminally liable for illegal use of
dangerous drugs under Section 15, R.A. No. 9165. An acquittal for this charge follows as a
necessary consequence.”

SECTION 15 DOES NOT APPLY TO A RANDOM DRUG TEST

In People vs. Sullano, G.R. No. 228373, March 12, 2018, the Supreme Court held that
Section 15 shall apply only if the person has been apprehended or arrested. It does not apply
where a person is subjected to a drug test pursuant to a random drug test requirement of R.A.
No. 9165.

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 On October 16, 2012, Senior Superintendent Nerio T. Bermudo (P/SSupt Bermudo),
the City Director of the Butuan City Police Office, ordered fifty (50) randomly selected police
officers under the Butuan City Police Office to undergo drug testing pursuant to Section 36,
Article III of R.A. No. 9165. Among those who underwent testing was PO1 Johnny Sullano
(Sullano), a police officer at Butuan City Police Station 5. Sullano’s urine sample was received
on October 17, 2012. According to the Initial Chemistry Report of the Philippine National
Police Regional Crime Laboratory Office, the test conducted on Sullano’s urine specimen gave
a positive result for the presence of methamphetamine. The confirmatory test on the same
specimen completed on November 5, 2012 yielded the same result. In his Demurrer to
Evidence, Sullano argued that the case against him should be dismissed as the State failed to
adduce sufficient evidence to prove his guilt beyond reasonable doubt. The essential elements
of the crime were not proven as it was never asserted that Sullano was apprehended or arrested
or actually caught using any dangerous drug.

The RTC granted the demurrer to evidence through its order dated March 7, 2014.

The Supreme Court held that for Section 15 to apply, it is required that the offender
should have been apprehended or arrested. “An analysis of the construction of the sentence
yields no other conclusion. Section 15 is unambiguous: the phrase “apprehended or arrested”
immediately follows “a person,” thus qualifying the subject person. It necessarily follows that
only apprehended or arrested persons found to be positive for use of any dangerous drug may
be prosecuted under the provision.”

MANDATORY DRUG TESTING FOR PERSONS BEING INVESTIGATED FOR A CRIME

PUNISHABLE WITH AN IMPRISONMENT OF SIX (6) YEARS AND ONE (1) DAY OR
MORE IS UNCONSTITUTIONAL

In Social Justice Society vs. Dangerous Drugs Board, et al., G.R. No. 157870 and
Manuel J. Laserna vs. Dangerous Drugs Board, et al G.R. No. 158633, November 3, 2008, the
Supreme Court En Banc struck down paragraph (f), Section 36 of R.A. No. 9165 which
provides:

“SEC. 36. Authorized Drug Testing… The following shall be subjected

to undergo drug testing:

xxx xxx

(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 shall undergo a mandatory drug test.

The Supreme Court rationalized as follows:

“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

76
 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 prosecutors office and peaceably
submitting themselves to drug testing, 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 person’s right to privacy
guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused
persons are veritably forced to incriminate themselves.”

In People vs. Dela Cruz, G.R. No. 200748, July 23, 2014, where Jaime Dela Cruz (Dela
Cruz) was arrested by the National Bureau of Investigation (NBI) for extortion but subjected to
drug test which yielded a positive result for the presence of dangerous drugs, the Supreme
Court said that “the drug test in Section 15 does not cover persons apprehended or arrested for
any unlawful act, but only for unlawful acts listed under Article II of R.A. 9165… 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.”

There is no problem up to here. But the Supreme Court, unfortunately, continued in

saying that “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.”

It is of the author’s opinion that the additional legal statements of the Supreme Court
cover only a situation where the offender was apprehended or arrested for violation of R.A. No.
9165 where the penalty does not exceed six (6) years and one (1) day. For where the penalty of
the crime punished under R.A. No. 9165 exceeds six (6) years and one (1) day, the Social
Justice Society decision applies.

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 Dela Cruz, which was decided by the First Division of the Supreme Court, cannot
modify much more reverse the ruling of the Supreme Court En Banc in Social Justice Society.
This is so because Section 4 of Article VIII of the 1987 Constitution clearly states that:

“Provided, that no doctrine or principle of law laid down by the Court in

a decision En Banc or in division may be modified or reversed except by the
Court sitting En Banc” (Article VIII, Section 4 (3) last sentence of the 1987
Constitution) (underscoring supplied)

No less than the Honorable Supreme Court En Banc had made it clear that a decision of
a division of the Supreme Court that runs counter to a decision/doctrine laid down by the
Supreme Court En Banc is unconstitutional and invalid.

In Lu vs. Lu Ym, Sr., 643 SCRA 23, 41, February 15, 2011, the Supreme Court En
Banc ruled:

“Since the present cases may involve a modification or reversal of a

Court-ordained doctrine or principle, the judgment rendered by the Special
Third Division may be considered unconstitutional, hence, it can never
become final. It finds mooring in the deliberations of the framers of the
Constitution:

On proposed Section 3(4), Commissioner Natividad asked what

the effect would be of a decision that violates the proviso that “no doctrine
or principle of law laid down by the court in a decision rendered en
banc or in division may be modified or reversed except by the court en
banc.” The answer given was that such a decision would be
invalid. Following up, Father Bernas asked whether the decision, if not
challenged, could become final and binding at least on the
parties. Romulo answered that, since such a decision would be in excess
of jurisdiction, the decision on the case could be reopened anytime”

A decision rendered by a Division of this Court in violation of this

constitutional provision would be in excess of jurisdiction and, therefore,
invalid. x x x”

In Manotok et al vs. Heirs of Barque, 574 SCRA 468, 491-492, December 18, 2008, an
entry of judgment had already been made in favor of the Barques. Yet, the Supreme Court En
Banc reopened the case since the decision of the First Division of the Supreme Court had not
attained finality because it was rendered in contravention of the Constitution. We quote the
Supreme Court:

“ x x x Most urgently, the Court had felt that the previous rulings by the
First Division and the Special First Division warranted either affirmation or
modification by the Court acting en banc.

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 It is a constitutional principle that “no doctrine or principle of law laid
down by the [C]ourt in a decision rendered en banc or in division may be
modified or reversed except by the court sitting en banc.” It has been argued
that the 2005 Decision of the First Division is inconsistent with precedents of
the Court, and leaving that decision alone without the imprimatur of the
Court en banc would lead to undue confusion within the bar and bench, with
lawyers, academics and judges quibbling over whether the earlier ruling of the
Division constitutes the current standard with respect to administrative
reconstitution of titles. Our land registration system is too vital to be stymied by
such esoteric wrangling, and the administrators and courts which implement that
system do not deserve needless hassle.” (Please refer to pages 491 & 492 of 574
SCRA)

In Republic vs. Garcia et al, 527 SCRA 495, 502-503, July 12, 2007, , the Supreme
Court (First Division) held that:

“On this, Article VIII, Section 4(3) of the Constitution provides:

(3) Cases or matters heard by a division shall be decided or resolved with

the concurrence of majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon, and in no case
without the concurrence of at least three of such Members. When the
required number is not obtained, the case shall be decided en banc;
Provided, that no doctrine or principle of law laid down by the court
in a decision rendered en banc or in division may be modified or
reversed except by the court sitting en banc. (emphasis supplied)

The Constitution mandates that only this Court sitting En Banc may
modify or reverse a doctrine or principle of law laid down by the Court in a
decision rendered en banc or in division. Any court, the Sandiganbayan
included, which renders a decision in violation of this constitutional precept
exceeds its jurisdiction.” (Please refer to pages 502 & 503 of Volume 527
SCRA)

Section 16. Cultivation or Culture of Plants Classified as

Dangerous Drugs or are Sources Thereof. - The penalty of life
imprisonment to death and a fine ranging from Five hundred thousand
pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be
imposed upon any person, who shall plant, cultivate or culture marijuana,
opium poppy or any other plant regardless of quantity, which is or may
hereafter be classified as a dangerous drug or as a source from which
any dangerous drug may be manufactured or derived: Provided, That in
the case of medical laboratories and medical research centers which
cultivate or culture marijuana, opium poppy and other plants, or materials
79
of such dangerous drugs for medical experiments and research purposes,
or for the creation of new types of medicine, the Board shall prescribe the
necessary implementing guidelines for the proper cultivation, culture,
handling, experimentation and disposal of such plants and materials.

The land or portions thereof and/or greenhouses on which any of

said plants is cultivated or cultured shall be confiscated and escheated in
favor 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. If the land involved is part of the public domain, the maximum
penalty provided for under this Section shall be imposed upon the
offender.

The maximum penalty provided for under this Section shall be

imposed upon any person, who organizes, manages or acts as a
"financier" of any of the illegal activities prescribed in this Section.

The penalty of twelve (12) years and one (1) day to twenty (20)
years of imprisonment and a fine ranging from One hundred thousand
pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall
be imposed upon any person, who acts as a "protector/coddler" of any
violator of the provisions under this Section.

NOTES

The authorities may have discovered a plantation of marijuana but if the confiscation
was done not in accordance with the Constitution and the law, the marijuana cannot be
admitted in evidence and the planter or owner of the land shall be acquitted.

This is what happened in the cases of People vs. Valdez, G.R. No. 129296, September
25, 2000, People vs. Pasudag, G.R. No. 128822, May 4, 2001 and People vs. Acosta, G.R. No.
238865, January 28, 2019.

Upon a tip, a police team, accompanied by their informer, left for the site where the
marijuana plants were allegedly being grown. After a three-hour, uphill trek from the nearest
barangay road, the police operatives arrived at the place pinpointed by their informant. The
police found Abe Valdez (Valdez) alone in his nipa hut. They then proceeded to look around
the area where Valdez had his kaingin and saw seven (7) five-foot high, flowering marijuana
plants in two (2) rows, approximately 25 meters from Valdez’s hut. PO2 Alfermer Balut (PO2
Balut) asked Valdez who owned the prohibited plants and, according to PO2 Balut, the latter
admitted that they were his. The police uprooted the seven (7) marijuana plants, which weighed
2.194 kilograms. The police took photos of Valdez standing beside the cannabis plants. Valdez
was then arrested. One of the plants, weighing 1.090 kilograms, was sent to the Philippine

80
National Police Crime Laboratory in Bayombong, Nueva Vizcaya for analysis. Inspector Prevy
Fabros Luwis, the Crime Laboratory forensic analyst, reported that upon microscopic
examination of said plant, she found cystolitic hairs containing calcium carbonate, a positive
indication for marijuana. She next conducted a chemical examination, the results of which
confirmed her initial impressions (People vs. Valdez, G.R. No. 129296, September 25, 2000).

The facts of the other case are as follows: On September 26, 1995, at around 1:30 in the
afternoon, SPO2 Pepito Calip (SPO2 Calip) of the Philippine National Police (PNP) Sison,
Pangasinan, went to Brgy. Artacho to conduct anti-jueteng operations. He urinated at a bushy
bamboo fence behind the public school. About five (5) meters away, he saw a garden of about
70 square meters. There were marijuana plants in between corn plants and camote tops. He
inquired from a storekeeper nearby as to who owned the house with the garden. The
storeowner told him that Alberto Pasudag (Pasudag) owned it. SPO2 Calip went to the Police
Station and reported to Chief of Police Romeo C. Astrero. The latter dispatched a team
composed of SPO2 Calip, SPO3 Fajarito, SPO3 Alcantara and PO3 Rasca to conduct an
investigation. At around 2:30 in that same afternoon, the team arrived at Brgy. Artacho and
went straight to the house of accused Pasudag. SPO3 Fajarito looked for accused Pasudag and
asked him to bring the team to his backyard garden which was about five (5) meters away.
Upon seeing the marijuana plants, the policemen called for a photographer, who took pictures
of accused Pasudag standing beside one of the marijuana plants. They uprooted seven (7)
marijuana plants. The team brought accused Pasudag and the marijuana plants to the police
station. The Chief of Police brought the tallest plant to the PNP Crime Laboratory for
examination. Major Theresa Ann Bugayong Cid, a forensic chemist at the PNP Crime
Laboratory, reported that the specimen was positive for marijuana (People vs. Pasudag, G.R.
No. 128822, May 4, 2001).

The third case happened on September 10, 2015 and had its genesis on a mauling
incident. At around seven (7) o’clock in the morning of that day in Purok 2, Barangay San
Juan, Gingoog City, Alfredo Salucana (Salucana) went to the Gingoog City Police Station to
report a mauling incident where Billy Acosta (Acosta) purportedly hit him with a piece of
wood. He also reported that Acosta was illegally planting marijuana. Salucana’s foregoing
reports prompted Police Inspector Ismael Virgil O. Gundaya (P/Insp. Gundaya), Senior Police
Officer 4 Henry B. Legaspi (SPO4 Legaspi), Senior Police Officer 2 Jan Jomen (SPO2 Jomen),
and Police Officer 3 Leo Pontillas (PO3 Pontillas) to proceed to Acosta’s home in Purok 2,
Barangay San Juan, Gingoog City. Thereat, Salucana positively identified Acosta who was
then walking on the trail leading towards his house. The police officers then rushed towards
Acosta and arrested him before he entered his home. After the arrest, SPO4 Legaspi found
thirteen (13) hills of suspected marijuana plants planted beneath the “gabi” plants just outside
Acosta’s home, and around a meter away from where he was arrested. Upon seeing the
marijuana, SPO4 Legaspi immediately called barangay officials to witness the uprooting of the
suspected marijuana plants. Thereafter, they brought Acosta and the uprooted marijuana plants
to the police station for the marking and inventory of the seized items. At the police station, the
suspected marijuana plants were marked and inventoried. SPO4 Legaspi then delivered the
seized items to the forensic laboratory for examination. After examination, the plants tested
positive for marijuana, a dangerous drug (People vs. Acosta, G.R. No. 238865, January 28,
2019).

81
 The accused in the said three (3) cases were all acquitted. In Valdez, the Supreme Court
held that “(t)he Constitution lays down the general rule that a search and seizure must be
carried on the strength of a judicial warrant. Otherwise, the search and seizure is deemed
“unreasonable.” Evidence procured on the occasion of an unreasonable search and seizure is
deemed tainted for being the proverbial fruit of a poisonous tree and should be excluded. Such
evidence shall be inadmissible in evidence for any purpose in any proceeding. In the instant
case, there was no search warrant issued by a judge after personal determination of the
existence of probable cause. From the declarations of the police officers themselves, it is clear
that they had at least one (1) day to obtain a warrant to search appellant’s farm. Their informant
had revealed his name to them. The place where the cannabis plants were planted was
pinpointed. From the information in their possession, they could have convinced a judge that
there was probable cause to justify the issuance of a warrant. But they did not. Instead, they
uprooted the plants and apprehended the accused on the excuse that the trip was a good six
hours and inconvenient to them. We need not underscore that the protection against illegal
search and seizure is constitutionally mandated and only under specific instances are searches
allowed without warrants. The mantle of protection extended by the Bill of Rights covers both
innocent and guilty alike against any form of high-handedness of law enforcers, regardless of
the praiseworthiness of their intentions.

The “plain view” doctrine cannot be applied. For the doctrine to apply, the following
elements must be present:

(a) a prior valid intrusion based on the valid warrantless arrest in which the police are
legally present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who have the right to be
where they are; and
(c) the evidence must be immediately apparent; and
(d) plain view justified mere seizure of evidence without further search.

In the instant case, recall that PO2 Balut testified that they first located the marijuana
plants before appellant was arrested without a warrant. Hence, there was no valid warrantless
arrest which preceded the search of appellant’s premises. Note further that the police team was
dispatched to appellant’s kaingin precisely to search for and uproot the prohibited flora. The
seizure of evidence in “plain view” applies only where the police officer is not searching for
evidence against the accused, but inadvertently comes across an incriminating object. Clearly,
their discovery of the cannabis plants was not inadvertent. We also note the testimony of SPO2
Tipay that upon arriving at the area, they first had to “look around the area” before they could
spot the illegal plants. Patently, the seized marijuana plants were not “immediately apparent”
and a “further search” was needed. In sum, the marijuana plants in question were not in “plain
view” or “open to eye and hand.” The “plain view” doctrine, thus, cannot be made to apply.

Even if the marijuana plants were found in an unfenced lot, still the right against
unreasonable searches and seizures applies. The right against unreasonable searches and
seizures is the immunity of one’s person, which includes his residence, his papers, and other
possessions. The guarantee refers to “the right of personal security” of the individual. What is

82
“sought to be protected against the State’s unlawful intrusion are persons, not places. To
conclude otherwise would not only mean swimming against the stream, it would also lead to
the absurd logic that for a person to be immune against unreasonable searches and seizures, he
must be in his home or office, within a fenced yard or a private place. The Bill of Rights
belongs as much to the person in the street as to the individual in the sanctuary of his bedroom.

The plants cannot, as products of an unlawful search and seizure, be used as evidence
against appellant. They are fruits of the proverbial poisoned tree.”

In People vs. Pasudag, G.R. No. 128822, May 4, 2001, People vs. Valdez was
reiterated. The Supreme Court noted that “the police authorities had ample opportunity to
secure from the court a search warrant. SPO2 Pepito Calip inquired as to who owned the house.
He was acquainted with marijuana plants and immediately recognized that some plants in the
backyard of the house were marijuana plants. Time was not of the essence to uproot and
confiscate the plants. They were three months old and there was no sufficient reason to believe
that they would be uprooted on that same day.

“The Court is not unmindful of the difficulties of law enforcement agencies in

suppressing the illegal traffic of dangerous drugs. However, quick solutions of crimes and
apprehension of malefactors do not justify a callous disregard of the Bill of Rights. We need
not underscore that the protection against illegal search and seizure is constitutionally
mandated and only under specific instances are searches allowed without warrants. The mantle
of protection extended by the Bill of Rights covers both innocent and guilty alike against any
form of high handedness of law enforcers, regardless of the praise worthiness of their
intentions.”

People vs. Acosta, G.R. No. 238865, January 28, 2019 likewise reiterated People vs.
Valdez. The High Court further explained the plain view doctrine. “Objects falling in plain
view of an officer who has a right to be in a position to have that view are subject to seizure
even without a search warrant and may be introduced in evidence. The ‘plain view’ doctrine
applies when the following requisites concur: (a) the law enforcement officer in search of the
evidence has a prior justification for an intrusion or is in a position from which he can view a
particular area; (b) the discovery of evidence in plain view is inadvertent; (c) it is immediately
apparent to the officer that the item he observes may be evidence of a crime, contraband or
otherwise subject to seizure. The law enforcement officer must lawfully make an initial
intrusion or properly be in a position from which he can particularly view the area. In the
course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating
the accused. The object must be open to eye and hand and its discovery inadvertent. (citing
People vs. Lagman)… The discovery of the police officers of the marijuana plants was not
inadvertent as it was prompted by Salucana. The testimonies of P/Insp. Gundaya, SPO4
Legaspi, and Salucana collectively paint the picture that the police officers proceeded with the
arrest of Acosta for the mauling incident armed with prior knowledge that he was also illegally
planting marijuana. It is clear that Salucana knew of Acosta’s illegal activities even prior to the
mauling incident. In fact, it may be reasonably inferred that the mauling incident had
something to do with Acosta’s planting of marijuana. It is also clear that Salucana apprised the
police officers of the illegal planting and cultivation of the marijuana plants when he reported

83
the mauling incident. Thus, when the police officers proceeded to Acosta’s abode, they were
already alerted to the fact that there could possibly be marijuana plants in the area.”

Section 17. Maintenance and Keeping of Original Records of

Transactions on Dangerous Drugs and/or Controlled Precursors and
Essential Chemicals. - The penalty of imprisonment ranging from one (1)
year and one (1) day to six (6) years and a fine ranging from Ten
thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall
be imposed upon any practitioner, manufacturer, wholesaler, importer,
distributor, dealer or retailer who violates or fails to comply with the
maintenance and keeping of the original records of transactions on any
dangerous drug and/or controlled precursor and essential chemical in
accordance with Section 40 of this Act.

An additional penalty shall be imposed through the revocation of the

license to practice his/her profession, in case of a practitioner, or of the
business, in case of a manufacturer, seller, importer, distributor, dealer or
retailer.

Section 18. Unnecessary Prescription of Dangerous Drugs. – The

penalty of imprisonment ranging from twelve (12) years and one (1) day to
twenty (20) years and a fine ranging from One hundred thousand pesos
(P100,000.00) to Five hundred thousand pesos (P500,000.00) and the
additional penalty of the revocation of his/her license to practice shall be
imposed upon the practitioner, who shall prescribe any dangerous drug to
any person whose physical or physiological condition does not require the
use or in the dosage prescribed therein, as determined by the Board in
consultation with recognized competent experts who are authorized
representatives of professional organizations of practitioners, particularly
those who are involved in the care of persons with severe pain.

Section 19. Unlawful Prescription of Dangerous Drugs. – The

penalty of life imprisonment to death and a fine ranging from Five hundred
thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00)
shall be imposed upon any person, who, unless authorized by law, shall
make or issue a prescription or any other writing purporting to be a
prescription for any dangerous drug.

84
 Section 27. 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 of life imprisonment to death and a fine ranging from Five hundred
thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00), in
addition to absolute perpetual disqualification from any public office, shall
be imposed upon 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 as provided for in this Act.

Any elective local or national official found to have benefited from

the proceeds of the trafficking of dangerous drugs as prescribed in this
Act, or have received any financial or material contributions or donations
from natural or juridical persons found guilty of trafficking dangerous
drugs as prescribed in this Act, 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.

Section 28. Criminal Liability of Government Officials and

Employees. – The maximum penalties of the unlawful acts provided for in
this Act shall be imposed, in addition to absolute perpetual disqualification
from any public office, if those found guilty of such unlawful acts are
government officials and employees.

Section 29. Criminal Liability for Planting of Evidence. – Any person

who is found guilty of "planting" any dangerous drug and/or controlled
precursor and essential chemical, regardless of quantity and purity, shall
suffer the penalty of death.

NOTE

Planting of evidence is the willful act by any person of maliciously and surreptitiously
inserting, placing, adding or attaching directly or indirectly, through any overt or covert act,

85
whatever quantity of any dangerous drugs and/or controlled precursor and essential chemical in
the person’s 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 the
Dangerous Drugs Act (Section 3, paragraph cc, R.A. No. 9165).

CHAIN OF CUSTODY

As amended by R.A. No. 10640, which took effect on July 23, 2014 (See OCA Circular
No. 77-2015 dated April 23, 2015), Section 21 subparagraphs 1 and 3 of R.A. No. 9165 now
provide:

“SEC. 21. Custody and Disposition of Confiscated, Seized, and/or

Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled
Precursors and Essential Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. – 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 in the
following manner:

“(1) The apprehending team having initial custody and control of the
dangerous drugs, controlled precursors and essential chemicals,
instruments/paraphernalia and/or laboratory equipment shall, immediately after
seizure and confiscation, conduct a physical inventory of the seized items 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,
with an elected public official and a representative of the National Prosecution
Service or the media who shall be required to sign the copies of the inventory and
be given a copy thereof: 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, finally, That noncompliance
of 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 and custody over said
items.

xxx

(3) A certification of the forensic laboratory examination results, which shall

be done by the forensic laboratory examiner, shall be issued immediately upon the
receipt of the subject item/s: Provided, That when the volume of dangerous drugs,
plant sources of dangerous drugs, and controlled precursors and essential chemicals
does not allow the completion of testing within the time frame, a partial laboratory
examination report shall be provisionally issued stating therein the quantities of
dangerous drugs still to be examined by the forensic laboratory: Provided,

86
 however, That a final certification shall be issued immediately upon completion of
the said examination and certification.”

The original provision of Section 21 states:

“SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered

Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential
Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – 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 in the following
manner:

(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;

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to
the PDEA Forensic Laboratory for a qualitative and quantitative examination;

(3) A certification of the forensic laboratory examination results, which shall be done
under oath by the forensic laboratory examiner, shall be issued within twenty-four (24)
hours after the receipt of the subject item/s: Provided, That when the volume of the
dangerous drugs, plant sources of dangerous drugs, and controlled precursors and
essential chemicals does not allow the completion of testing within the time frame, a
partial laboratory examination report shall be provisionally issued stating therein the
quantities of dangerous drugs still to be examined by the forensic laboratory: Provided,
however, That a final certification shall be issued on the completed forensic laboratory
examination on the same within the next twenty-four (24) hours;

(4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours,
conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous
drugs, plant sources of dangerous drugs, and controlled precursors and essential
chemicals, including the instruments/paraphernalia and/or laboratory equipment, and
through the PDEA shall within twenty-four (24) hours thereafter proceed with the
destruction or burning of 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 DOJ, civil society groups and any elected public
official. The Board shall draw up the guidelines on the manner of proper disposition
and destruction of such item/s which shall be borne by the offender: Provided, That
those item/s of lawful commerce, as determined by the Board, shall be donated, used or

87
 recycled for legitimate purposes: Provided, further, That a representative sample, duly
weighed and recorded is retained;

(5) The Board shall then issue a sworn certification as to the fact of destruction or
burning of the subject item/s which, together with the representative sample/s in the
custody of the PDEA, shall be submitted to the court having jurisdiction over the case.
In all instances, the representative sample/s shall be kept to a minimum quantity as
determined by the Board;

(6) The alleged offender or his/her representative or counsel shall be allowed to

personally observe all of the above proceedings and his/her presence shall not constitute
an admission of guilt. In case the said offender or accused refuses or fails to appoint a
representative after due notice in writing to the accused or his/her counsel within
seventy-two (72) hours before the actual burning or destruction of the evidence in
question, the Secretary of Justice shall appoint a member of the public attorney’s office
to represent the former;

(7) After the promulgation and judgment in the criminal case wherein the representative
sample/s was presented as evidence in court, the trial prosecutor shall inform the Board
of the final termination of the case and, in turn, shall request the court for leave to turn
over the said representative sample/s to the PDEA for proper disposition and
destruction within twenty-four (24) hours from receipt of the same; and

(8) Transitory Provision: a) Within twenty-four (24) hours from the effectivity of this
Act, dangerous drugs defined herein which are presently in possession of law
enforcement agencies shall, with leave of court, be burned or destroyed, in the presence
of representatives of the Court, DOJ, Department of Health (DOH) and the accused/and
or his/her counsel, and, b) Pending the organization of the PDEA, the custody,
disposition, and burning or destruction of seized/surrendered dangerous drugs provided
under this Section shall be implemented by the DOH.”

WITNESSES UNDER THE ORIGINAL PROVISION OF R.A. NO. 9165

Before the amendment, three (3) third party witnesses were required to witness the
inventory taking. These were the representatives from the media, Department of Justice and
any elected public official. This is the reason why most of the decisions cited here required the
presence of these three (3) witnesses because the arrest/buy bust operation took place before
the effectivity of R.A. No. 10640 on July 23, 2014.

WITNESSES UNDER R.A. NO. 10640

Under R.A. No. 10640, the three (3) third party witnesses are reduced into two (2),
namely, the representatives from the media or the National Prosecution Service and any elected
public official. Take note that the representative from media and National Prosecution Service
need not be both present. Any of them plus the presence of any elected public official will now
be compliant with Section 21.

88
 Thus, under the present law, the apprehending team shall, immediately after seizure and
confiscation:

1. conduct a physical inventory of the seized items and photograph the same
2. in the presence of:
i. the accused (representative or counsel)
ii. elected public official
iii. representative of the National Prosecution Service or media who shall be
required to sign the copies of the inventory and be given a copy thereof.

The physical inventory and photograph shall be conducted at the nearest police station
or at the nearest office of the apprehending officer/team, whichever is practicable in
warrantless search and at the place where the search warrant is served.

Before September 4, 2018, jurisprudence was not strict on the presence of the third-
party witnesses. There were many decisions where even if there were no third party witnesses
or that only one (1) or two (2) of them were present, the Supreme Court still ruled that Section
21 was complied with provided the evidentiary value of the drugs was preserved. Some of
these decisions are People vs. Llamado, March 13, 2009; People vs. Hambora, 687 SCRA 653;
People vs. Cardenas, 668 SCRA 827; People vs. Magundayao, 667 SCRA 310 and People vs.
Naquita, 560 SCRA 430.

However, starting with People vs. Lim, G.R. No. 231989, September 4, 2018, the
Supreme Court En Banc requires strict compliance with Section 21. Thus, it is now
jurisprudentially settled that failure to comply with paragraph 1, Section 21, Article II of R.A.
No. 9165 implies a concomitant failure on the part of the prosecution to establish the identity of
the corpus delicti. It produces doubts as to the origins of the seized drugs and that non-
compliance with the requirements of Section 21 tarnishes the credibility of the corpus
delicti around which prosecutions under the Comprehensive Dangerous Drugs Act revolve and
consequently, they also tarnish the very claim that an offense against the Comprehensive
Dangerous Drugs Act was committed (Tolentino vs. People, G.R. No. 227217, February 12,
2020).

In that case of Lim supra, IO1 Albert Orellan marked the two (2) plastic sachets while
they were still in the house of the arrested person. Despite exerting efforts to secure the
attendance of the representative from the media and the barangay, nobody arrived to witness
the inventory. The Supreme Court ruled that:

“The judgment of conviction is reversed and set aside, and Lim should
be acquitted based on reasonable doubt.

xxx xxx xxx

Evident, however, is the absence of an elected public official and

representatives of the DOJ and the media to witness the physical inventory and

89
 photograph of the seized items. In fact, their signatures do not appear in the
Inventory Receipt.

The Court stressed in People v. Vicente Sipin y De Castro (G.R. No.

224290, June 11, 2018):

The prosecution bears the burden of proving a valid cause for non-
compliance with the procedure laid down in Section 21 of R.A. No. 9165, as
amended. x x x It should take note that the rules require that the apprehending
officers do not simply mention a justifiable ground, but also clearly state this
ground in their sworn affidavit, coupled with a statement on the steps they took
to preserve the integrity of the seized items. Strict adherence to Section 21 is
required where the quality of illegal drugs seized is miniscule, since it is highly
susceptible to planting, tampering or alteration of evidence.

Earnest effort to secure the attendance of the necessary witnesses must

be proven. People v. Ramos (G.R. No. 233744, February 28, 2018) require:

x x x a justifiable reason of such failure or a showing of any genuine

and sufficient effort to secure the required witnesses under Section 21 of
R.A 9165 must be adduced. In People v. Umipang, the Court held that the
prosecution must show that earnest efforts were employed in contacting the
representatives enumerated under the law for “a sheer statement that
representatives were unavailable without so much as an explanation on
whether serious attempts were employed to look for other representatives,
given the circumstances is to be regarded as a flimsy excuse.” Verily, mere
statements of unavailability, absent actual serious attempts to contact the
required witnesses are unacceptable as justified grounds for non-compliance.
x x x”.

But even before Lim, there were decisions that non-compliance with the requirements
of Section 21 casts doubt on the integrity of the corpus delicti.

In People vs. Garcia, G.R. No. 173480, February 25, 2009, the arresting team did not
physically inventory the items seized and photographed them in the presence of the arrested
person or his representative or his counsel, a representative from the media and the Department
of Justice (DOJ), and any elected public official. The Supreme Court held that the failure of the
arresting team to follow the procedural safeguard of Section 21 (1), Article II, R.A. No. 9165 is
fatal to the prosecution’s cause since failure to follow the said procedure shall result in the
acquittal of the accused from the charge. Although the rule in Section 21 is not inflexible as the
rule admits of exceptions if non-compliance is due to a justifiable ground, provided the
prosecution recognized the procedural lapses and thereafter explained the justifiable grounds
and provided further, that the integrity and the evidentiary value of the seized items are
properly preserved by the apprehending officer/team.

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 In People vs. Umipang, 671 SCRA 324, April 25, 2012, the Taguig Police Station Anti-
Illegal Drugs Task Force, acting on a tip from a confidential informant, conducted a buy-bust
operation. When they reached the area, PO2 Gasid, the poseur-buyer, approached Sam. Straight
off, the confidential informant said “Sam, pa-iskor kami.” Sam replied, “Magkano ang iiskorin
nyo?” The confidential informant said, “Five hundred pesos.” Sam took out three (3) plastic
sachets containing white crystalline substance with various price tags–500, 300, and 100. After
making a choice, PO2 Gasid handed the marked P 500.00 to Sam who received the same. Upon
receipt by Sam of the marked money, PO2 Gasid took off his cap as the pre-arranged signal
and he immediately grabbed and arrested Sam. In a few seconds, the rest of the buy-bust team
joined them. PO1 Ragos then handcuffed Sam. Five (5) more plastic sachets containing the
same white crystalline substance were recovered from Sam. PO2 Gasid alleged that he marked
the items with the initials “SAU” [which stood for Sammy A. Umipang]. After this, they
brought Sam to the police station for booking and investigation.

The Supreme Court held that “[s]ubstantive law requires strict observance of the
procedural safeguards outlined in R.A. No. 9165. Given the nature of buy-bust operations and
the resulting preventive procedural safeguards crafted in R.A. No. 9165, courts must read
carefully before giving full credit to the testimonies of those who conducted the operations.
Although it has been ruled in the past that mere procedural lapses in the conduct of a buy-bust
operation are not ipso facto fatal to the prosecution’s cause, still, courts must thoroughly
evaluate and differentiate those errors that constitute a simple procedural lapse from those that
amount to a gross, systematic, or deliberate disregard of the safeguards drawn by the law.”
Here, the Task Force did not exert efforts to seek the third-party representatives enumerated
under Section 21(1) of R.A. No. 9165. Under the law, the inventory and photographing of
seized items must be conducted in the presence of a representative from the media, from the
Department of Justice (DOJ), and from any elected public official. The Task Force did not even
attempt to contact the barangay chairperson or any member of the barangay council.

The Supreme Court further said “that there was no genuine and sufficient effort on the
part of the apprehending police officers to look for the said representatives pursuant to Section
21(1) of R.A. 9165. A sheer statement that representatives were unavailable – without so much
as an explanation on whether serious attempts were employed to look for other representatives,
given the circumstances – is to be regarded as a flimsy excuse. We stress that it is the
prosecution who has the positive duty to establish that earnest efforts were employed in
contacting the representatives enumerated under Section 21(1) of R.A. 9165, or that there was
a justifiable ground for failing to do so.”

Furthermore, the High Court observed that “the other requisite for the relaxation of the
rule on chain of custody, aside from the existence of a justifiable cause, is that the evidentiary
value of the drugs was preserved. Here, the conduct of the buy-bust operations was peppered
with defects, which raises doubts on the preservation of the integrity and evidentiary value of
the seized items from Sam. PO2 Gasid had no prior knowledge of the complete name of Sam
including his middle initial. This being the case, the marking of the items with “SAU”, which
stood for Sammy A. Umipang, raises questions as to how PO2 Gasid came to know about the
initials of Umipang prior to the latter’s statements at the police precinct. Marking after seizure
is the starting point in the custodial link, thus, it is vital that the seized contraband[s] are

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immediately marked because succeeding handlers of the specimens will use the markings as
reference. The marking of the evidence serves to separate the marked evidence from the corpus
of all other similar or related evidence from the time they are seized from the accused until they
are disposed of at the end of criminal proceedings, obviating switching, “planting”, or
contamination of evidence.”

In Lescano vs. People, G.R. No. 214490, January 13, 2016, the Supreme Court held
that, “Section 21 of the Comprehensive Dangerous Drugs Act of 2002, as amended by
Republic Act No. 10640, stipulates requirements for the custody and disposition of confiscated,
seized, and/or surrendered drugs and/or drug paraphernalia… specifically, with respect to
custody before the filing of a criminal case… Compliance with Section 21’s requirements is
critical. Non-compliance is tantamount to failure in establishing identity of corpus delicti, an
essential element of the offenses of illegal sale and illegal possession of dangerous drugs. By
failing to establish an element of these offenses, non-compliance will, thus, engender the
acquittal of an accused... Failure to comply with Paragraph 1, Section 21, Article II of RA 9165
implies a concomitant failure on the part of the prosecution to establish the identity of
the corpus delicti. It produces doubts as to the origins of the [seized paraphernalia]… Even the
doing of acts which ostensibly approximate compliance but do not actually comply with the
requirements of Section 21 does not suffice.”

After Lim (September 4, 2018), came People vs. Oliva, et al., G.R. No. 234156,
January 7, 2019, where the Supreme Court likewise acquitted the accused because the
representative of the media or the National Prosecution Service was not present, albeit, an
elected public official was there, to witness the inventory taking. The Supreme Court declared
that:

“In this case, the absence of a representative of the National Prosecution

Service or the media during the inventory of the seized items was not justifiably
explained by the prosecution. A review of the Transcript of Stenographic Notes
does not yield any testimony from the arresting officers as to the reason why
there was no representative from the DOJ or the media. The only one present to
witness the inventory and the marking was an elected official, Barangay Captain
Evelyn Villamor. Neither was there any testimony to show that any attempt was
made to secure the presence of the required witnesses.

xxx xxx xxx

Certainly, the prosecution bears the burden of proof to show valid cause
for non-compliance with the procedure laid down in Section 21 of R.A. No.
9165, as amended. It has the positive duty to demonstrate observance thereto in
such a way that, during the proceedings before the trial court, it must initiate in
acknowledging and justifying any perceived deviations from the requirements of
the law. Its failure to follow the mandated procedure must be adequately
explained and must be proven as a fact in accordance with the rules on evidence.
The rules require that the apprehending officers do not simply mention a
justifiable ground, but also clearly state this ground in their sworn affidavit,

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 coupled with a statement on the steps they took to preserve the integrity of the
seized item. A stricter adherence to Section 21 is required where the quantity of
illegal drugs seized is miniscule since it is highly susceptible to planting,
tampering, or alteration.

Thus, this Court finds it appropriate to acquit the appellants in this case
as their guilt has not been established beyond reasonable doubt.”

People vs. Doctolero, Jr., G.R. No. 243940, August 20, 2019 is another case where the
absence of any representative of the National Prosecution’s Service or media during the
inventory taking resulted in the acquittal of the accused. The facts are as follows: After the sale
was consummated, SPO1 Fortuno performed the prearranged signal, prompting the rest of the
buy-bust team to rush in and apprehend accused-appellant. SPO1 Luis Fortuno (SPO1 Fortuno)
retrieved the marked money from the suspect. However, the suspect ran towards another house,
where he remained hiding until Barangay Chairman Mary Jane Dela Rosa (Brgy. Chairman
Dela Rosa) and Barangay Ex-O Rolando Abadam (Brgy. Ex-O Abadam) were summoned to
convince him to surrender to the police. Thereafter, suspect was taken to the barangay office of
Barangay Concepcion Dos, Marikina City where SPOl Fortuno prepared an inventory and
marked the confiscated plastic sachet containing white crystalline substance with “ABD 10-3-
15” and the buy-bust money in the presence of accused-appellant, Brgy. Chairman Dela Rosa,
and Brgy. Ex-O Abadam. Meanwhile, SPO1 Peter Joseph Villanueva took photographs.

The Supreme Court ruled that considering that the “arrest of accused-appellant …
transpired after the effectivity of RA 10640…the witnesses required … are an elected public
official and a representative of the NPS OR the media. In this case, although the inventory and
photography of the seized items were conducted in the presence of Brgy. Chairman Dela Rosa
and Brgy. Ex-O Abadam, both elected public officials, records are bereft of evidence to show
that a representative of the NPS or the media was also present thereat. Regrettably, no
explanation has been offered for their absence and no testimony has been given to prove that
there were genuine and earnest efforts exerted to secure their presence, as jurisprudentially
required. In fact, there was not even an attempt to contact these witnesses, especially given the
fact that the police officers received the confidential information from their asset on October 2,
2015 and the buy-bust operation was put into action in the early morning of October 3, 2015,
thereby giving the police officers sufficient time to contact any member of the NPS or the
media. Indeed, while the RTC took judicial notice of the fact that the Office of the City
Prosecutor of Marikina City does not have a night-shift public prosecutor who could be invited
to witness the inventory and photography in this case, the police officers had ample time to
contact them during the daytime of October 2, 2015. Moreover, RA 10640 requires the
presence of an elected public official and a representative of the NPS OR the media; thus, the
police officers even had the option who among these witnesses would be more convenient for
them to find. The police officers cannot mask their non-compliance by stating that they were
not able to contact any of the required witnesses when the same was made only at such an
ungodly hour rather than well beforehand knowing that the buy-bust operation was planned to
be conducted at that time. This failure on the part of the prosecution was not justified, thereby
rendering the integrity and evidentiary value of the seized items to be highly compromised,
consequently warranting accused-appellant’s acquittal.”

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 The Supreme Court again reiterated that “with regard to the witness requirement, non-
compliance therewith may be permitted only if the prosecution proves that the apprehending
officers exerted genuine and sufficient efforts to secure their presence, although they
eventually failed to appear. While the earnestness of these efforts must be examined on a case-
to-case basis, the primary objective is for the Court to be convinced that the failure to comply
was reasonable under the given circumstances. Thus, mere statements of unavailability,
absent actual serious attempts to contact the required witnesses, are unacceptable as justified
grounds for non-compliance. These considerations arise from the fact that police officers are
ordinarily given sufficient time - beginning from the moment they have received the
information about the activities of the accused until the time of his arrest - to prepare for a buy-
bust operation and consequently, make the necessary arrangements beforehand, knowing fully
well that they would have to strictly comply with the chain of custody rule.

In People vs. Ruiz, G.R. No. 243635, November 27, 2019, accused Ruiz was acquitted
due to the failure of the arresting officers to comply with Section 21. “While the marking of the
seized items took place immediately after seizure and confiscation, it is undisputed that the
same was conducted without the presence of any of the additional witnesses prescribed by law.
Likewise, only a media representative was present to sign the inventory of the seized items
prepared at the police station. The mandate of R.A. 10640 is clear that there be the presence of
at least two witnesses during the inventory-taking and photographing of the seized items. The
sole presence of the media representative will not suffice as compliance.”

In People vs. Nocum, G.R. No. 239905, January 20, 2021, only media representative
Jimmy Mendoza was present to witness the inventory and photograph of the seized items. “The
prosecution did not offer any explanation for this omission. It merely stated that no elected
official and representative from the DOJ were available at that time… The Court held in People
v. Umipang, that the prosecution must have shown that earnest efforts were employed in
contacting the representatives enumerated under the law; a sheer statement that said
representatives were unavailable without so much as an explanation on whether serious
attempts were made to look for other representatives, given the circumstances is to be regarded
as a flimsy excuse… In People v. Garcia, accused Garcia was acquitted for Illegal Sale of
Dangerous Drugs because there was no representative from the DOJ to witness the physical
inventory and photograph of the seized items. Similarly, in People v. Macud, the buy-bust team
failed to secure the presence of the required witnesses to the conduct of inventory of the seized
items. For this, the Court, too, rendered a verdict of acquittal… Indeed, the presence of the
insulating witnesses during inventory and photograph of the confiscated illegal drugs is vital.
In the absence of these persons, the possibility of switching, planting, or contamination of the
evidence negates the credibility of the seized drug and other confiscated items. Non-
compliance with the requirement is, therefore, fatal to the prosecution’s case.”

In People vs. Francisco, G.R. No. 243788, February 10, 2021, the Supreme Court noted
that “the requirement of having the three (3) required witnesses (this happened on December 5,
2011) to be physically present at the time of inventory was not complied with… There were
only two (2) witnesses present during the marking and the inventory, namely: Kagawad Jose
Ruiz, Jr. and Jimmy Mendoza from the media. There was no representative from the DOJ. The

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prosecution failed to proffer a justifiable reason for such failure or a showing of any genuine
and sufficient effort to secure the required witnesses. Mere statements of unavailability, absent
actual serious attempts to contact the required witnesses are unacceptable as justified grounds
for non-compliance. Here, when asked if there was a representative from the DOJ, IOI Lumase,
Jr. plainly replied, “Wala pong present during that time”. He did not explain more. Verily,
there was no indication that the apprehending officers exerted genuine efforts to secure the
presence of a representative from the DOJ, or that such efforts failed… Jurisprudence dictates
that the procedure enshrined in Section 21, Article II of RA 9165 is a matter of substantive law,
and cannot be brushed aside as simple procedural technicality; or worse, ignored as an
impediment to the conviction of illegal drug suspects. For indeed, however noble the purpose
or necessary the exigencies. of our campaign against illegal drugs may be, it is still a
governmental action that must always be executed within the boundaries of law. Owing to the
unjustified breach of Section 21 that compromised the integrity and evidentiary value of the
corpus delicti, we acquit the accused-appellants.”

In People vs. Yagao, G.R. No. 216725, February 18, 2019, the Supreme Court
explained the importance of the immediate marking of the seized items. Citing People vs.
Angngao, the Supreme Court said that:

“The marking by the arresting officer of the drugs, being the starting point in
the custodial link, should be made immediately upon the seizure, or, if that is not
possible, as close to the time and place of the seizure as practicable under the
obtaining circumstances. This immediate marking is essential because the
succeeding handlers of the drugs would use the markings as their reference to
the seizure, and because it further serves to segregate the marked seized drugs
from all other evidence from the time and point of seizure until the drugs are
disposed of at the end of the criminal proceedings. The deliberate taking of
these identifying steps is statutorily aimed at obviating switching, “planting”
or contamination of the evidence. Verily, the preservation of the chain of
custody vis-a-vis the drugs ensures the integrity of the evidence incriminating the
accused, and fulfills the element of relevancy as a requisite for the admissibility of
the evidence.”

The Supreme Court likewise reiterated the importance of strict compliance with Section
21 in this wise:

As we pointed out in People v. Pagaduan:

“In several cases, we have emphasized the importance of compliance with

the prescribed procedure in the custody and disposition of the seized drugs. We
have repeatedly declared that the deviation from the standard procedure
dismally compromises the integrity of the evidence. In People v. Morales, we
acquitted the accused for failure of the buy-bust team to photograph and inventory
the seized items, without giving any justifiable ground for the non-observance of
the required procedures. People v. Garcia likewise resulted in an acquittal because
no physical inventory was ever made, and no photograph of the seized items was

95
 taken under the circumstances required by R.A. No. 9165 and its implementing
rules. In Bondad, Jr. v. People, we also acquitted the accused for the failure of the
police to conduct an inventory and to photograph the seized items, without
justifiable grounds.

We had the same rulings in People v. Gutierrez, People v. Denoman, People

v. Partoza, People v. Robles, and People v. dela Cruz, where we emphasized the
importance of complying with the required mandatory procedures under Section 21
of R.A. No. 9165.”

TWO INVENTORIES

Under existing jurisprudence, the taking of inventory twice in different places is not
allowed. In People vs. Cabrellos, G.R. No. 229826, July 30, 2018, it was pronounced that “the
chain of custody rule laid down by RA 9165 and its IRR contemplates a situation where the
inventory conducted on the seized items is witnessed by the required personalities at the same
time.”

CASES WHERE SECTION 21 WAS COMPLIED WITH

We can cite, however, two (2) cases where the apprehending police officers followed
the requirements of Section 21.

First is the case of People vs. Banares, G.R. No. 243664, January 22, 2020. In this case,
after the buy bust operation, the apprehending team conducted the marking, inventory, and
photography of the seized items in the presence of media representative Rodel B. Brotamonte
(Brotamonte), Department of Justice (DOJ) representative Romulo B. Barbacena (Barbacena),
Barangay Official Elmer U. Gascon (Gascon), and accused appellant at the place of
apprehension. The seized items were then brought to the crime laboratory, where after
examination, tested positive for methamphetamine hydrochloride, a dangerous drug.

The Supreme Court said “that the buy-bust team had sufficiently complied with the
chain of custody rule under Section 21, Article II of RA 9165… To establish the identity of the
dangerous drugs with moral certainty, the prosecution must be able to account for each link of
the chain of custody from the moment the drugs are seized up to their presentation in court as
evidence of the crime. As part of the chain of custody procedure, the law requires, inter alia,
that the marking, physical inventory, and photography of the seized items be conducted
immediately after seizure and confiscation of the same. The law further requires that the said
inventory and photography be done in the presence of the accused or the person from whom
the items were seized, or his representative or counsel, as well as certain required witnesses,
namely: (a) if prior to the amendment of RA 9165 by RA 10640, a representative from the
media and the DOJ, and any elected public official; or (b) if after the amendment of RA 9165
by RA 10640, an elected public official and a representative of the National Prosecution
Service or the media. The law requires the presence of these witnesses primarily “to ensure the
establishment of the chain of custody and remove any suspicion of switching, planting, or
contamination of evidence.”… In this case, it is glaring from the records that after accused-

96
appellant was arrested, the buy-bust team immediately took custody of the seized plastic
sachets, and conducted the marking, inventory, and photography of the seized items in the
presence of Media Representative Brotamonte, DOJ Representative Barbacena, Barangay
Official Gascon, and accused-appellant at the place of arrest, in conformity with the witness
requirement under RA 9165. PO3 Codia then personally delivered all the evidence seized to
Forensic Chemist Police, Senior Inspector Wilfredo I. Pabustan, Jr., who performed the
necessary tests thereon.”

Second is People vs. Dejos, G.R. 237423, October 12, 2020. At around 11:30 p.m. of
July 17, 2012, operatives from the Provincial Anti-Illegal Drugs Special Operations Task
Group (PAIDSOTG), led by Police Officer I Julmar J. Berdejo (PO1 Berdejo) and PO3 Serito
C. Ongy (PO3 Ongy), conducted a buy-bust operation against Neil Dejos (Dejos) in the interior
part of Colon Extension, Taclobo, Dumaguete City. During the operation but before the buy
bust money was given to Dejos, the operatives recovered seven (7) bultos of shabu, with a total
net weight of 31.75 grams, from accused-appellant. After the operation, PO1 Berdejo marked
the seized items. Realizing that the place of arrest was not well-lighted and safe, the operatives
discussed among themselves on whether to conduct the inventory and photography instead at
the National Bureau of Investigation (NBI) office.

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 The Supreme Court said that “it is apparent that the police operatives had sufficiently
complied with the chain of custody rule under Section 21, Article II of RA 9165… To
establish the identity of the dangerous drugs with moral certainty, the prosecution must be
able to account for each link of the chain of custody from the moment the drugs are seized
up to their presentation in court as evidence of the offense. As part of the chain of custody
procedure, the law requires, inter alia, that the marking, physical inventory, and
photography of the seized items be conducted immediately after seizure and confiscation of
the: seized drugs: What is more, the inventory and photography must be done in the
presence of the accused or the person from whom the items were seized, or his
representative or counsel, as well as certain required witnesses, namely: (a) if prior to the
amendment of RA 9165 by RA 10640, a representative from the media and the DOJ, and
any elected public official; or (b) if after the amendment of RA 9165 by RA 10640, an
elected public official and a representative of the National Prosecution Service or the
media. The law requires the presence of these witnesses primarily to ensure the
establishment of the chain of custody and remove any suspicion of switching, planting, or
contamination of evidence… In accused-appellant’s case, after his arrest, the buy-bust team
immediately took custody of the seized items and marked them. As the place of arrest was
not well-lighted, the buy-bust team decided to conduct the inventory and the photography
of the seized items at the NBI office in the presence of accused-appellant, media
representative Rio, DOJ representative Astillero, and Brgy. Captain Suasin. PO1 Berdejo
personally delivered all the seized items to PO1 Pama, the officer on duty at the crime
laboratory. Soon after, PO1 Pama submitted them to PCI Llena, who performed the
necessary tests thereon. After the examination, PCI Llena placed the specimens in the
evidence vault of the crime laboratory prior to their presentation to the court, where they
were duly presented, identified, and admitted as evidence… Evidently, there were no lapses
in the disposition and handling of the seized items to even prompt the relaxation of the
procedure outlined in Section 21, Article II of RA 9165. The prosecution complied with the
standard in handling the evidence and in establishing the chain of custody. Indeed, it
proved beyond reasonable doubt that accused-appellant is guilty of illegally possessing
31.75 grams of shabu.”

THIRD PARTY WITNESSES MUST BE PRESENT DURING BUY BUST OPERATION

There are a lot of decisions now on this subject. In the early case of People vs. Jehar
Reyes, G.R. No. 199271, October 19, 2016, the Supreme Court already ruled that the witnesses
required by Section 21 of RA 9165 must be present not only during the inventory but during
the buy bust operation and failure to strictly follow this procedure cast doubt on the integrity of
the drugs-the corpus delicti. Jehar Reyes was cited in the subsequent case of People vs.
Sagana, August 2, 2017. Then, came People vs. Que, G.R. No. 212994, January 31, 2018;
People vs. Tomawis, April 18, 2018, People vs. Gaa & Adobar, June 6, 2018, People vs.
Tanes, April 3, 2019, People vs. Dumanjug, G.R. No. 235468, July 1, 2019, People vs.
Claudel, G.R. No. 219852, April 3, 2019, People vs. Ramos, August 28, 2019, People vs.
Doria, G.R. No. 2278564, October 9, 2019, People vs. Globa, G.R. No. 241251, December 10,
2019, Tanamor vs. People, G.R. No. 228132, March 11, 2020 and People vs. Leaño, G.R. No.
246461, July 28, 2020.

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 In People vs. Ga-a & Adobar, G.R. No. 225559, June 6, 2018, accused Aquila Adobar
was acquitted primarily on the ground that the required witnesses were not “physically present
at the time of and at or near the place of apprehension and seizure”. According to the Supreme
Court, “it is the presence of these witnesses at that point that would insulate against the practice
of planting evidence.”

In People vs. Que, G.R. No. 212994, January 31, 2018, the Supreme Court said that
“[t]he presence of third-party witnesses is imperative, not only during the physical inventory
and taking of pictures, but also during the actual seizure of items. The requirement of
conducting the inventory and taking of photographs “immediately after seizure and
confiscation” necessarily means that the required witnesses must also be present during the
seizure or confiscation. This is confirmed in People v. Mendoza, where the presence of these
witnesses was characterized as an “insulating presence [against] the evils of switching,
‘planting’ or contamination.”

In People vs. Manabat, G.R. No. 242947, July 17, 2019, the Supreme Court reiterated
that:

In this connection, this also means that the three required witnesses should
already be physically present at the time of apprehension - a requirement that can
easily be complied with by the buy-bust team considering that the buy-bust
operation is, by its nature, a planned activity. Verily, a buy-bust team normally has
enough time to gather and bring with it the said witnesses.

As held in the fairly recent case of People v. Tomawis, the Court explained
that the presence of the three witnesses must be secured not only during the
inventory but more importantly at the time of the warrantless arrest. It is at this
point in which the presence of the three witnesses is most needed, as it is their
presence at the time of seizure and confiscation that would belie any doubt as to the
source, identity, and integrity of the seized drug, viz.:

The presence of the witnesses from the DOJ, media, and from public elective
office is necessary to protect against the possibility of planting,
contamination, or loss of the seized drug. Using the language of the Court
in People v. Mendoza, without the insulating presence of the representative
from the media or the DOJ and any elected public official during the seizure
and marking of the drugs, the evils of switching, “planting” or contamination
of the evidence that had tainted the buy-busts conducted under the regime of
RA No. 6425 (Dangerous Drugs Act of 1972) again reared their ugly heads as
to negate the integrity and credibility of the seizure and confiscation of the
subject sachet that was evidence of the corpus delicti, and thus adversely
affected the trustworthiness of the incrimination of the accused.

The presence of the three witnesses must be secured not only during the
inventory but more importantly at the time of the warrantless arrest. It is at this
point in which the presence of the three witnesses is most needed, as it is their

99
 presence at the time of seizure and confiscation that would belie any doubt as to the
source, identity, and integrity of the seized drug. If the buy-bust operation is
legitimately conducted, the presence of the insulating witnesses would also
controvert the usual defense of frame-up as the witnesses would be able testify that
the buy-bust operation and inventory of the seized drugs were done in their
presence in accordance with Section 21 of RA 9165.

The practice of police operatives of not bringing to the intended place of

arrest the three witnesses, when they could easily do so - and “calling them in” to
the place of inventory to witness the inventory and photographing of the drugs only
after the buy-bust operation has already been finished - does not achieve the
purpose of the law in having these witnesses prevent or insulate against the planting
of drugs.

To restate, the presence of the three witnesses at the time of seizure and
confiscation of the drugs must be secured and complied with at the time of the
warrantless arrest; such that they are required to be at or near the intended place of
the arrest so that they can be ready to witness the inventory and photographing of
the seized and confiscated drugs “immediately after seizure and confiscation”.

In People vs. Globa, G.R. No. 241251, December 10, 2019, citing previous cases, the
Supreme Court held, that:

“This Court has, in no ambiguous language, explained the necessity of

having these witnesses, not only during the inventory, but more importantly, at the
time of apprehension and seizure. In fact, it is at the time of arrest and confiscation
when the insulating presence of the witnesses is needed, as it is their presence at
such stage that would foreclose the pernicious practice of planting of evidence or
compromising the integrity of the same. To be sure, this is a requirement that the
buy-bust team could easily comply with given the nature of a buy-bust operation as
supposedly a well-planned activity.”

In People vs. Leaño, G.R. No. 246461, July 28, 2020, the Supreme Court also ruled:

“The presence of the three witnesses must be secured not only during the
inventory but more importantly at the time of the warrantless arrest.

It is at this point in which the presence of the three witnesses is most needed,
as it is their presence at the time of seizure and confiscation that would belie any
doubt as to the source, identity, and integrity of the seized drug. If the buy-bust
operation is legitimately conducted, the presence of the insulating witnesses would
also controvert the usual defense of frame-up as the witnesses would be able to
testify that the buy-bust operation and inventory of the seized drugs were done in
their presence in accordance with Section 21 of RA 9165.”

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 “The practice of police operatives of not bringing to the intended place of
arrest the three witnesses, when they could easily do so - and “calling them in” to
the place of inventory to witness the inventory and photographing of the drugs only
after the buy-bust operation has already been finished - does not achieve the
purpose of the law in having these witnesses prevent or insulate against the planting
of drugs.”

“To restate, the presence of the three witnesses at the time of seizure and
confiscation of the drugs must be secured and complied with at the time of the
warrantless arrest; such that they are required to be at or near the intended place of
the arrest so that they can be ready to witness the inventory and photographing of
the seized and confiscated drugs “immediately after seizure and confiscation.”

FOUR LINKS IN THE CHAIN OF CUSTODY

It was in Malillin vs. Lopez, G.R. No. 172953, April 30, 2008, a case frequently cited in
subsequent cases including the case of People vs. Lim, supra, an En Banc decision, where the
chain of custody was explained, as follows:

“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.” (See also
Carino vs. People, 581 SCRA 388, March 13, 2009 and People vs. Gum-Oyen,
April 16, 2009).

As Malillin spoke of the links in the chain, the Supreme Court in People vs. Kamad,
G.R. No. 174198, January 19, 2010; People vs. Nandi, G.R. No. 188905, July 13, 2010; People
vs. Dahil, 745 SCRA 221, January 12, 2015; People vs. Siaton, G.R. No. 208353, July 4, 2016;
People vs. Gayoso, G.R. No. 206590, March 27, 2017; People vs. Que, G.R. No. 212994,
January 31, 2018; People vs. Ubungen, G.R. No. 225497, July 23, 2018; People vs. Labadan,
et al, G.R. No. 237769, March 11, 2019; People vs. Omanos, G.R. No. 223036, July 10, 2019;
People vs. Alon-alon, G.R. No. 237803, November 27, 2019; People vs. Del Rosario, G.R. No.
235658, June 22, 2020; People vs. Nocum, G.R. No. 239905, January 20, 2021; People vs.
Francisco, et al, G.R. No. 243788, February 10, 2021; People vs. Villalon, G.R. No. 249412,
March 15, 2021 and People vs. Rivera, 252886, March 15, 2021 spelled out the four (4) links
that the prosecution must establish in the chain of custody, to wit:

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 First, the seizure and marking, if practicable, of the illegal drug recovered
from the accused by the apprehending officer;

Ssecond, 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 by
the forensic chemist to the court.

FIRST LINK

The first link speaks of seizure and marking which should be done immediately at the
place of arrest and seizure. It also includes the physical inventory and taking of photographs
of the seized or confiscated drugs, which should be done in the presence of the accused and
the third party witnesses (People vs. Omanos, G.R. No. 223036, July 10, 2019; People vs.
Alon-alon, G.R. No. 237803, November 27, 2019 and People vs. Nocum, G.R. No. 239905,
January 20, 2021).

The protocol of inventory and photograph has been discussed extensively above. We
shall discuss here the imperative of marking the seized evidence.

The first stage in the chain of custody is the marking of the dangerous drugs. Marking,
“which is the affixing on the dangerous drugs or [substance] by the apprehending officer or the
poseur-buyer of his initials or signature or other identifying signs, should be made in the
presence of the apprehended violator immediately upon arrest.” The marking operates to set
apart as evidence the dangerous drugs or related items from other material from the moment
they are confiscated until they are disposed of at the close of the criminal proceedings, thereby
preventing switching, planting or contamination of evidence (People vs. Siaton, G.R. No.
208353, July 4, 2016). Marking is the affixing on the dangerous drugs or related items by the
apprehending officer or the poseur-buyer of his initials or signature or other identifying signs,
should be made in the presence of the apprehended violator immediately upon arrest (Valencia
vs. People, G.R. No. 198804, January 22, 2014).

In People vs. Coreche, G.R. No. 182528, August 14, 2009, the plastic sachets allegedly
seized from accused appellant were marked (as “HVA, HVA-1 and HVA-2”). But it was not
established when and where the marking was done. The Supreme Court acquitted the accused-
appellant by ruling that:

“Crucial in proving chain of custody is the marking of the seized drugs or

other related items immediately after they are seized from the accused. Marking
after seizure is the starting point in the custodial link, thus it is vital that the
seized contraband are immediately marked because succeeding handlers of the
specimens will use the markings as reference. The marking of the evidence

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 serves to separate the marked evidence from the corpus of all other similar or
related evidence from the time they are seized from the accused until they are
disposed of at the end of criminal proceedings, obviating switching, “planting,”
or contamination of evidence.

Long before Congress passed RA 9165, this Court has consistently held
that failure of the authorities to immediately mark the seized drugs raises
reasonable doubt on the authenticity of the corpus delicti and suffices to rebut
the presumption of regularity in the performance of official duties, the doctrinal
fallback of every drug-related prosecution. Thus, in People v. Laxa and People
v. Casimiro, we held that the failure to mark the drugs immediately after they
were seized from the accused casts doubt on the prosecution evidence,
warranting acquittal on reasonable doubt. These rulings are refinements of our
holdings in People v. Mapa and People v. Dismuke that doubts on the
authenticity of the drug specimen occasioned by the prosecution’s failure to
prove that the evidence submitted for chemical analysis is the same as the one
seized from the accused suffice to warrant acquittal on reasonable doubt.”

In People vs. Garcia, 580 SCRA 259, 270-280, February 25, 2009, the Supreme Court
declared that bringing first the accused to a lying-in-clinic for medical examination and then to
the police station where the marking took place was not marking done immediately after
seizure of the items as significant intervening time had elapsed. The pertinent portion of the
Supreme Court’s decision is as follows:

“In addition, we also note that PO1 Garcia testified that he marked the
confiscated items when he returned to the police station after the buy-bust
operation. This admission additionally shows that the marking was not done
immediately after seizure of the items, but only after a significant intervening
time had lapsed, i.e., after the buy-bust team had taken Ruiz to a lying-in clinic
for a medical examination, and from there, to the police headquarters.

xxx

This deviation from the standard procedure in anti-narcotics operations produces

doubts as to the origins of the shabu as held also in the said Garcia case. We quote the Supreme
Court again:

“In People v Orteza, 528 SCRA 550, the Court in discussing the
implications of the failure to comply with Paragraph 1, Section 21, Article II of
RA 9165, declared:

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

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 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.”

The same doctrine-that failure to mark the drugs immediately after they were seized
casts doubt on the authenticity of the corpus delicti- was re-affirmed in the more recent case of
People vs. Lopez, January 29, 2014.

“We have consistently held that failure of the authorities to immediately

mark the seized drugs raises reasonable doubt on the authenticity of the corpus
delicti and suffices to rebut the presumption of regularity in the performance of
official duties. Failure to mark the drugs immediately after they were seized
from the accused casts doubt on the prosecution evidence, warranting acquittal
on reasonable doubt.” (underlining ours for emphasis)

People vs. Dahil, G.R. No. 212196, January 12, 2015 likewise explained that “[c]rucial
in proving the chain of custody is the marking of the seized drugs or other related items
immediately after they have been seized from the accused. “Marking” means the placing by the
apprehending officer or the poseur-buyer of his/her initials and signature on the items seized.
Marking after seizure is the starting point in the custodial link; hence, it is vital that the seized
contraband be immediately marked because succeeding handlers of the specimens will use the
markings as reference. The marking of the evidence serves to separate the marked evidence
from the corpus of all other similar or related evidence from the time they are seized from the
accused until they are disposed of at the end of the criminal proceedings, thus, preventing
switching, planting or contamination of evidence… It must be noted that marking is not found
in R.A. No. 9165 and is different from the inventory-taking and photography under Section 21
of the said law. Long before Congress passed R.A. No. 9165, however, this Court had
consistently held that failure of the authorities to immediately mark the seized drugs would cast
reasonable doubt on the authenticity of the corpus delicti.”

In People vs. Gayoso, G.R. No. 206590, March 27, 2017, the Supreme Court noted that
“the records do not show that the arresting officers marked the seized items with their initials in
the presence of appellant and immediately upon confiscation. While P02 Isip testified that the
seized sachets of shabu were marked in the police station, no evidence was presented to show
that the marking was accomplished in the presence of appellant. Moreover, the author of the
markings on said items was never identified. None of the police officers admitted placing the

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markings. There was therefore a complete absence of evidence to prove authorship of the
markings.”

In People vs. Omanos, G.R. No. 223036, July 10, 2019, it was also explained that “[t]he
first link refers to seizure and marking. “Marking” means the apprehending officer or the
poseur-buyer places his/her initials and signature on the seized item. The marking of the
evidence serves to separate the marked evidence from the corpus of all other similar or related
evidence from the time they are seized from the accused until they are disposed of at the end of
the criminal proceedings, thus, preventing switching, planting or contamination of evidence…
Marking after seizure is the starting point in the custodial link. It is vital that the seized
contraband be immediately marked because succeeding handlers of the specimens will use the
markings as reference. Marking though should be done in the presence of the apprehended
violator immediately upon confiscation to truly ensure that they are the same items which enter
the chain of custody.”

In the cases of People vs. Suating, G.R. No. 220142, January 29, 2020 and People vs.
Abdulah, G.R. No. 243941, March 11, 2020, both of which were penned by Justice Leonen, the
police failed to mark the seized items immediately after seizure.

In People vs. Suating, supra, the Philippine National Police of Silay City (PNP Silay),
conducted a buy bust operation against a certain Ronald Suating (Suating) in the afternoon of
November 9, 2011. The poseur-buyer went to the premises of Barangay Mambulac Elementary
School, ahead of the police officers. Shortly thereafter, he called PO2 Reynaldo Bernil (PO2
Bernil) when Suating was already “within his sight.” The rest of the police officers followed,
positioning themselves approximately 10 meters away from the area of operation and about 50
meters away from the school. PO2 Bernil was the point person of the entrapment. He saw the
poseur-buyer approach Suating and engage in a short conversation with him. He also witnessed
when Suating left the area of operation, only to return to the poseur-buyer after a few minutes.
While Suating and the poseur-buyer were talking, the latter took out the marked money from
his pocket and gave it to Suating. In exchange, Suating handed unknown articles suspected to
be marijuana to the poseur-buyer. After the sale, the poseur-buyer left the area. He proceeded
to where PO2 Bernil was in order to surrender the large stick of suspected marijuana cigarette
bought from Suating. PO2 Bernil then handed the item to PO2 Ian Libo-on (PO2 Libo-on),
who marked it with “BOK-1.” PO2 Bernil and the other police officers immediately moved
towards Suating and restrained his hands. After introducing themselves as persons of authority,
they apprehended Suating and informed him of his constitutional rights.

The Supreme Court acquitted Suating. “The initial link in the chain of custody is the
marking of the confiscated illicit drugs. Marking precludes any contamination, switching or
planting of evidence. Through it, the evidence is separated from the corpus of other similar and
correlated evidence, starting from confiscation until its disposal at the close of criminal
proceedings. To be at par with the rule on the chain of custody, the marking of the confiscated
articles should be undertaken: (1) in the presence of the accused; and (2) immediately upon
seizure. This effectively guarantees that the articles seized “are the same items that entered the
chain and are eventually the ones offered in evidence.” In this case, the prosecution offered no
reason as to why the marking of the seized marijuana labelled “BOK-1” was not immediately

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done after confiscation, but rather only after a considerable lapse of time, when the poseur
buyer was able to leave the area of operation, away from the sight of the accused. Moreover,
they particularly failed to explain why the police officers could not have promptly marked the
item in the presence of Suating, if only to remove any uncertainty that the marijuana cigarette
marked by PO2 Libo-on, and later subjected to laboratory testing, was the very same one
allegedly sold by the accused to the poseur-buyer. Here, an apparent break in the chain of
custody already existed before the item was even marked.”

In People vs. Abdulah, G.R. No. 243941, March 11, 2020, the police conducted a buy
bust operation against Samiah Abdulah (Abdulah) and a certain EB on November 21, 2014.
Abdulah approached PO3 Erich Joel Temporal (PO3 Temporal) and inquired about his order.
The officer handed her the marked P500.00 bill, which she then passed to EB. In turn, EB
placed the money in a sling bag and retrieved from it a small plastic sachet containing white
crystalline substance, which she handed to the officer. At this, PO3 Temporal immediately
introduced himself as a police officer and apprehended Abdulah and EB. PO2 Rosauro
Gayatao proceeded to frisk the girls while PO3 Temporal seized the sling bag from EB,
recovering the buy-bust money and another sachet of white crystalline substance. Believing
that the area was unsafe for being “a Muslim area,” the team brought Abdulah and EB to the
barangay hall where they marked, inventoried, and photographed the seized items. The
proceeding was witnessed by Barangay Tanod Reynaldo Garcia, Barangay Kagawad Francisco
delos Santos, Abdulah and EB.

The Supreme Court held that “the first in the chain of custody’s interconnected links is
the marking stage, in which the arresting officer or poseur-buyer affixes “initials or other
identifying signs on the seized items . . . in the presence of the accused shortly after
arrest.” This crucial step “serves to separate the marked evidence from the corpus of all other
similar or related evidence… Here, the marking of the seized drugs was not done immediately
after accused-appellant’s arrest. In his own words, PO3 Temporal revealed that the team
decided to mark and inventory the items at the barangay hall after deeming the target area to be
unsafe, it being “a Muslim area”… The prosecution’s attempt to justify the delay in marking
and inventorying the items is too weak, if not callous, a reason to validate the police officers’
noncompliance with the chain of custody requirements.”

In People vs. Francisco, G.R. No. 243788, February 10, 2021, the Supreme Court noted
that “there was a failure to immediately mark the contraband at the place of arrest in the City of
Manila. It was at the PDEA main office in Quezon City where the seized item was marked.
During transit, the sachet of shabu remained unmarked causing a significant gap in the chain of
custody that may have compromised the evidence. Citing People v. Ismael (806 Phil. 21
(2017), the Supreme Court highlighted the importance of marking the seized drugs
immediately upon arrest, viz.:

The first stage in the chain of custody rule is the marking of the dangerous
drugs or related items. Marking, which is the affixing on the dangerous drugs or
related items by the apprehending officer or the poseur-buyer of his initials or
signature or other identifying signs, should be made in the presence of the
apprehended violator immediately upon arrest. The importance of the prompt

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 marking cannot be denied, because succeeding handlers of dangerous drugs or
related items will also use the marking as reference. Also, the marking operates to
set apart as evidence the dangerous drugs or related items from other material from
the moment they are confiscated until they are disposed of at the close of the
criminal proceedings. thereby forestalling switching, planting or contamination of
evidence. In short, the marking immediately upon confiscation or recovery of
dangerous drugs or related items is indispensable in the presentation of their
integrity and evidentiary value.”

SECOND LINK

In People vs. Gayoso, G.R. No. 206590, March 27, 2017, it was also explained that “the
turnover of the seized shabu from the arresting officers to the investigating officer in the police
station constitutes the second link in the chain of custody. In this regard, the Court takes note
that the testimonies of the prosecution witnesses failed to identify the person to whom the
seized items were turned over at the police station. While SP03 Salamida was identified as the
property custodian of the police station, this does not necessarily mean that he is also the
investigating officer. There is nothing in the records to substantiate this presumption. This total
want of evidence gains importance considering that none of the arresting officers presented as
witnesses identified the shabu presented during trial as the same shabu seized from appellant.
Thus, the second link in the chain of custody is missing.”

In People vs. Del Rosario, G.R. No. 235658, June 22, 2020, the Supreme Court
likewise explained that “the second link in the chain of custody is the transfer of the seized
drugs by the apprehending officer to the investigating officer. The investigating officer shall
conduct the proper investigation and prepare the necessary documents for the proper transfer of
the evidence to the police crime laboratory for testing. Thus, the investigating officer’s
possession of the seized drugs must be documented and established… Here, the name of the
investigator was neither identified nor mentioned by the prosecution. SPO1 Naredo failed to
specify the person to whom he turned over the seized items upon reaching the police station. It
was merely stated that “the police officers prepared a request for laboratory examination and
drug testing.” However, the specific person who handled the seized items for the preparation of
the required documents was not named in the records. When the apprehending officer is unable
to identify the investigating officer to whom he turned over the seized items, this Court has
held that such circumstance, when taken in light of the several other lapses in the chain of
custody that attend the case, raises doubts as to whether the integrity and evidentiary value of
the seized illegal drugs had been preserved.”

In People vs. Ubungen, G.R. No. 225497, July 23, 2018, the Supreme Court observed
that the prosecution failed to show the second link in the chain of custody as no testimony was
offered relating to the transmittal of the subject sachet from the arresting officer to the
investigating officer. PO1 Abubo’s testimony, is “silent as to the name of the investigating
officer to whom the seized sachet of drug was transmitted, or on whether he transmitted the
confiscated item to an investigating officer in the first place. The prosecution’s Exhibit “E” or
the Certificate of Inventory also failed to disclose the person who received the seized drug from

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PO1 Abubo. While the said document was signed by PO1 Abubo, no addressee or recipient
was indicated therein.”

THIRD LINK

In People vs. Siaton, G.R. No. 208353, July 4, 2016, the Supreme Court cited the legal
basis of the third link. It said that “Section 21, paragraphs 2 and 3, Article II of R.A. 9165 lay
down the proper procedure to be followed in order to sufficiently establish the 3rd link in the
chain of custody, to wit:

2) Within twenty-four (24) hours upon confiscation/seizure of dangerous

drugs, plant sources of dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the
same shall be submitted to the PDEA Forensic Laboratory for a qualitative and
quantitative examination.

3) A certification of the forensic laboratory examination results, which shall

be done under oath by the forensic laboratory examiner, shall be issued within
twenty-four (24) hours after the receipt of the subject item/s: Provided, That when
the volume of the dangerous drugs, plant sources of dangerous drugs, and
controlled precursors and essential chemicals does not allow the completion of
testing within the time frame, a partial laboratory examination report shall be
provisionally issued stating therein the quantities of dangerous drugs still to be
examined by the forensic laboratory: Provided, however, That a final certification
shall be issued on the completed forensic laboratory examination on the same
within the next twenty-four (24) hours.”

In People vs. Gayaso, G.R. No. 206590, March 27, 2017 too, it was expounded that
“the transfer of the seized shabu from the investigating officer to the forensic chemist in the
crime laboratory is the third link in the chain of custody. While the seized shabu was turned
over by PI Barber to the PDEA, he no longer had any personal knowledge of the manner it was
handled therein. He also did not identify the police officer in whose custody the seized sachets
of shabu were placed at the PDEA. He left it to the responsibility of the PDEA to forward the
seized shabu to the crime laboratory. The request for laboratory examination of the PDEA
identifies the police officer who delivered the seized shabu as a certain SPO1 Asis, but he was
not presented to testify that the shabu delivered to the crime laboratory was the
same shabu confiscated from appellant. There is a third break in the chain of custody.”

Again in People vs. Del Rosario, G.R. No. 235658, June 22, 2020, it was explained that
“the third link in the chain of custody is the delivery by the investigating officer of the illegal
drug to the forensic chemist. Once the seized drugs arrive at the forensic laboratory, it will be
the laboratory technician who will test and verify the nature of the substance. Here, SPO1
Naredo testified that he was with PO1 Cruz when the latter delivered the seized items to SPO1
Agustin of the crime laboratory. Thus, there was an apparent transfer of the seized items from
SPO1 Naredo to PO1 Cruz. As can be gleaned from SPO1 Naredo’s testimony, however, no
informative details were provided as to how, and at what point, the seized items were handed to

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PO1 Cruz, who was not even a member of the buy-bust team. There was also lack of
information on the condition of the seized items when SPO1 Naredo transmitted the same to
PO1 Cruz and when PO1 Cruz delivered it to SPO1 Agustin. Further, there was no
documentary evidence indicating SPO1 Agustin’s actual receipt of the seized items and how
the latter handled the same upon his receipt thereof before transmitting the same to FC Rodrigo
for forensic examination.”

In People vs. Labadan, et al, G.R. No. 237769, March 11, 2019, “PO3 Diomampo
states that he gave the sample to the forensic chemist PCI Julian. As per the chain of custody
document, SPO2 Abad handed the specimen to PO3 Diomampo again, which enabled the latter
to hand it over to PCI Julian. The question arises, why did the investigating officer return the
specimen to PO3 Diomampo? Further, as reflected in the document, there was an almost two-
hour break - between 8:40 p.m. and 10:35 p.m. - before PO3 Diomampo gave the specimen
back to PCI Julian. PO3 Diomampo had no explanation for this gap, nor made any remark on
how the specimen was handled to guarantee that its integrity was uncompromised during this
time. This is also against the protocol that that the arresting officer should tum over the
specimen to the forensic chemist.” This was considered a breach of the protocol by the
Supreme Court.

FOURTH LINK

In People vs. Siaton, G.R. No. 208353, July 4, 2016, it was held that “considering that
the chemist who conducted the examination was unable to testify due to his unjustifiable
absences, there is no way of knowing how the drugs were kept while in his custody until it was
transferred to the court. The forensic chemist should have personally testified on the
safekeeping of the drugs but the parties resorted to a general stipulation on the chemist’s
competence and the existence of the chemistry report… Since there was no showing that
precautions were taken to ensure that there was no change in the condition of the specimen and
no opportunity for someone not in the chain to have possession thereof, the Court can only
conclude that the integrity of the corpus delicti was not preserved.”

People vs. Omanos, G.R. No. 223036, July 10, 2019 explained that the “fourth
link refers to the turnover and submission of the dangerous drug from the forensic chemist to
the court. In drug related cases, it is of paramount necessity that the forensic chemist testifies
on the details pertaining to the handling and analysis of the dangerous drug submitted for
examination i.e. when and from whom the dangerous drug was received; what identifying
labels or other things accompanied it; description of the specimen; and the container it was in.
Further, the forensic chemist must also identify the name and method of analysis used in
determining the chemical composition of the subject specimen… Here, the testimony of PSI
Salvacion was dispensed with because the defense admitted her proposed testimony. It appears
that the proposed testimony, was contained in her affidavit, only covered her findings on the
drug sample submitted by PO3 Pacampara. She did not discuss how she handled the dangerous
drug from the time she received it until the time it got presented in court. There was further no
description of the method she utilized in analyzing the chemical composition of the drug
sample.”

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 In People vs. Ubungen, G.R. No. 225497, July 23, 2018, the Supreme Court held that
“compliance with the fourth link in the chain of custody was not satisfactorily demonstrated by
the prosecution. It must be recalled that the trial court dispensed with the testimony of PI
Ordoño, the forensic chemist, in view of the stipulation entered into by the prosecution and the
defense during the hearing of the case on 18 September 2008… In People v. Pajarin, 654 Phil.
461 (2011), the Court ruled that in case of a stipulation by the parties to dispense with the
attendance and testimony of the forensic chemist, it should be stipulated that the forensic
chemist would have testified that he took the precautionary steps required in order to preserve
the integrity and evidentiary value of the seized item, thus: (1) that the forensic chemist
received the seized article as marked, properly sealed, and intact; (2) that he resealed it after
examination of the content; and (3) that he placed his own marking on the same to ensure that
it could not be tampered pending trial… In this case, there is no record that the stipulations
between the parties contain the aforesaid conditions… Absent any testimony regarding the
management, storage, and preservation of the illegal drug allegedly seized herein after its
qualitative examination, the fourth link in the chain of custody of the said illegal drug could not
be reasonably established… Failure to demonstrate compliance with even just one of these
links creates reasonable doubt that the substance confiscated from the accused is the same
substance offered in evidence.”

In People vs. Labadan, et al, G.R. No. 237769, March 11, 2019, the Supreme Court
held that “on the fourth link, after PCI Julian examined the sample taken from accused-
appellants to ensure it was indeed a prohibited drug, nary a statement was made detailing what
happened after the examination. The stipulation stated that the specimen was turned over to the
evidence custodian; however, the identity of the custodian was not revealed, nor did such
person sign the chain of custody document. Any other detail after the turnover to PCI Julian
was sorely missing in the document. Once more, the prosecution evidence gives rise to more
questions than answers: To whom did PCI Julian hand over the specimen after examination?
How was it handled by her? How was it handled by the evidence custodian? No answers were
found to properly apprise the Court of the compliance with the chain of custody rule. The
Court, in acquitting the accused in the recent case of People of the Philippines v. Angeles, held:

“Clearly, the third and fourth links in the chain of custody are sorely lacking.
PO2 Saez’s lone testimony leaves several questions unanswered. What happened to
the drugs from the time Relos received it from PO2 Saez until it was eventually
transmitted to the forensic chemist for examination? Were there other persons who
came into contact with the drugs before the forensic chemist subjected it to
examination? Who handed the drugs to the forensic chemist? How did Relos and
the forensic chemist handle the drugs? Who ultimately transmitted the drugs seized
from Angeles to the trial court to be used as evidence against him? The necessary
details to prove the preservation of the integrity of the drugs recovered from
Angeles remain a mystery. All these are left open to the realm of possibilities such
that the evidentiary value of drugs presented in court was unduly prejudiced;
considering that it cannot be said with certainty that the drugs were never
compromised or tampered with.”

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 The Supreme Court further said that “while it is true that the credible and positive
testimony of a single prosecution witness is sufficient to warrant a conviction, PO2 Saez’s
testimony is not enough. In the case at bar, the parties only stipulated the qualifications of the
forensic chemist. Such stipulation is severely limited because it does not cover the manner as to
how the specimen was handled before and after it came to the possession of the forensic
chemist.”

In People vs. Alon-alon, G.R. No. 237803, November 27, 2019, the Supreme Court said
that “Forensic Chemist Rodrigo testified that she received the specimen from their receiving
clerk, and turned it over to the evidence custodian for safekeeping after her examination
thereof. She likewise retrieved the same from the evidence custodian before presenting it in
court. However, the evidence custodian was not presented in court in clear disregard of the
mandate that every link in the chain must testify, describing the condition of the seized item
when it was delivered and the precautions taken to ensure its integrity… The testimony of PO3
Avila as to how he handled the seized item from receipt until he brought it to the crime
laboratory is imperative. To be sure, the probability on the integrity and identity of the corpus
delicti being compromised is present in every storage or transportation of the prohibited item,
be it from the PNP crime laboratory to the court or otherwise… The non-presentation of the
evidence custodian in court is similarly fatal to the prosecution’s cause.”

People vs. Del Rosario, G.R. No. 235658, June 22, 2020, likewise explained the fourth
link. “The last link involves the submission of the seized drugs by the forensic chemist to the
court when presented as evidence in the criminal case. In this case, there was no testimonial or
documentary evidence on how FC Rodrigo kept the seized items while it was in her custody
and in what condition the items were in until it was presented in court. While the parties
stipulated on FC Rodrigo’s testimony, the stipulations do not provide information regarding the
condition of the seized item while in her custody or if there was no opportunity for someone
not in the chain to have possession thereof… In People v. Gutierrez, 614 Phil. 285 (2009),
there were inadequate stipulations as to the testimony of the forensic chemist. In that case, no
explanation was given regarding the chemist’s custody in the interim - from the time it was
turned over to the investigator to its turnover for laboratory examination. The records also
failed to show what happened to the allegedly seized shabu between the turnover by the
chemist to the investigator and its presentation in court. Thus, since no precautions were taken
to ensure that there was no change in the condition of the object and no opportunity for
someone not in the chain to have possession thereof, the accused therein was acquitted.”

It was held in People vs. Nocum, G.R. No. 239905, January 20, 2021 that “[i]n drug
related cases, it is of paramount necessity that the forensic chemist testifies as to details
pertinent to the handling and analysis of the dangerous drug submitted for examination i.e.
when and from whom the dangerous drug was received; what identifying labels or other things
accompanied it; description of the specimen; and the container it was in, as the case may be.
Further, the forensic chemist must also identify the name and method of analysis used in
determining the chemical composition of the subject specimens… Here, both the prosecution
and defense stipulated and dispensed with forensic chemist (PSI Roque) testimony during the
pre-trial on April 22, 2015. The stipulations, nonetheless, only focused on the expertise and
qualifications of PSI Roque as forensic chemist, the police officer’s delivery of the specimens

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to the Quezon City Police District Police Station - Crime Laboratory, the crime laboratory’s
receipt of the request for laboratory examination and the specimens to be tested, the existence
of Final Chemistry Report No. D-542- 14, and that the specimens brought for examination
were the same ones tested by PSI Roque. Notably, none of these stipulations even mentioned
the condition of the specimens when PSI Roque received them and how he handled the same
before, during, and after the chemical examination until the same reached the court. In People
v. Dahil, the Court acquitted the accused therein in view of the forensic chemist’s failure to
testify on how she handled the dangerous drug submitted to her for laboratory examination.”

In People vs. Villalon, G.R. No. 249412, March 15, 2021, the Supreme Court held that
the “prosecution failed to show compliance with the fourth link of the chain of custody.
Records show that during the trial, the prosecution and the defense stipulated on the intended
testimony of prosecution witness P/S Insp. Pascual, thus: (a) that he is an expert witness; (b)
that pursuant to the Request for Laboratory Examination from the Escalante City Police
Station, P/SInsp. Pascual conducted the qualitative examination on the specimens submitted to
them; (c) that after conducting the required examination, he reduced his findings in Chemistry
Report No. D-549-2015; and (d) that he can identify the specimens which he subjected to
examination. However, in dispensing with his testimony, the prosecution failed to prove the
manner by which the specimens were handled before P/SInsp. Pascual received them, how he
examined the items, and how these were stored or kept in custody until they were brought and
presented in court as evidence… In drug related cases, “it is of paramount necessity that
the forensic chemist testifies on the details pertaining to the handling and analysis of the
dangerous drug submitted for examination, i.e., when and from whom the dangerous drug was
received; what identifying labels or other things accompanied it; description of the specimen;
and the container it was in. Further, the forensic chemist must also identify the name and
method of analysis used in determining the chemical composition of the subject specimen…”
Should the parties opt to stipulate and dispense with the attendance of the forensic chemist, the
Court clarified in People v. Ubungen that “it should be stipulated that the forensic chemist
would have testified that he took the precautionary steps required in order to preserve the
integrity and evidentiary value of the seized item, thus: (1) the forensic chemist received the
seized article as marked, properly sealed, and intact; (2) he resealed it after examination of the
content; and (3) he placed his own marking on the same to ensure that it could not be tampered
pending trial.” Here, the parties’ stipulation did not mention that any one of these precautionary
steps were in fact done by the forensic chemist, from the time he received the seized items for
laboratory examination and before they were delivered to the trial court for identification,
leaving a gap in the chain of custody of said seized items… Accordingly, since the prosecution
failed to account for the fourth link in the chain of custody of the items purportedly seized from
accused-appellant, its integrity and evidentiary value were already compromised, thereby
warranting accused-appellant’s acquittal.”

PLEA BARGAINING

Until August 15, 2017, a person charged with any offenses punished under the
Comprehensive Dangerous Drugs Act of 2002 is not entitled to the beneficent provision on
plea bargaining. This is because Section 23 of Republic Act (R.A.) No. 9165, or
the “Comprehensive Dangerous Drugs Act of 2002,” provides:

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 “SEC 23. Plea-Bargaining Provision. - Any person charged under any
provision of this Act regardless of the imposable penalty shall not be allowed to
avail of the provision on plea-bargaining.”

This provision, however, was declared unconstitutional by the Supreme Court in

Estipona vs. Hon. Lobrigo, et al, G.R. No. 226679, August 15, 2017. In this case, Salvador A.
Estipona, Jr. (Estipona) was charged with violation of Section 11, Article II of R.A. No.
9165 (Possession of Dangerous Drugs). On June 15, 2016, Estipona filed a Motion to Allow
the Accused to Enter into a Plea Bargaining Agreement, praying to withdraw his not guilty plea
and, instead, to enter a plea of guilty for violation of Section 12, Article II of R.A. No.
9165 (Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous
Drugs) with a penalty of rehabilitation in view of his being a first-time offender and the
minimal quantity of the dangerous drug seized in his possession. But the trial court denied his
motion because Section 23 of R.A. No. 9165 does not allow any person charged with any drug
offense to avail of the beneficent provision on plea bargaining.

The Supreme Court struck down Section 23 of R.A. No. 9165 for being contrary to the
rule-making authority of the Supreme Court under Section 5(5), Article VIII of the 1987
Constitution.

It explained that “Section 5(5), Article VIII of the 1987 Constitution explicitly
provides:

Sec. 5. The Supreme Court shall have the following powers:

xxxx

(5) Promulgate rules concerning the protection and enforcement of

constitutional rights, pleading, practice, and procedure in all courts, the admission
to the practice of law, the Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a simplified and inexpensive procedure
for the speedy disposition of cases, shall be uniform for all courts of the same
grade, and shall not diminish, increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial bodies shall remain effective unless
disapproved by the Supreme Court.”

“The power to promulgate rules of pleading, practice and procedure is now

Our exclusive domain and no longer shared with the Executive and Legislative
departments… As it now stands, Congress has no authority to repeal, alter, or
supplement rules concerning pleading, practice, and procedure. x x x. The
separation of powers among the three co-equal branches of our government has
erected an impregnable wall that keeps the power to promulgate rules of pleading,
practice and procedure within the sole province of this Court. The other branches
trespass upon this prerogative if they enact laws or issue orders that effectively
repeal, alter or modify any of the procedural rules promulgated by the Court… By

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 the same token, it is towards the provision of a simplified and inexpensive
procedure for the speedy disposition of cases in all courts that the rules on plea
bargaining was introduced. As a way of disposing criminal charges by agreement
of the parties, plea bargaining is considered to be an “important,” “essential,”
“highly desirable,” and “legitimate” component of the administration of justice…
Considering the presence of mutuality of advantage, the rules on plea bargaining
neither create a right nor take away a vested right. Instead, it operates as a means to
implement an existing right by regulating the judicial process for enforcing rights
and duties recognized by substantive law and for justly administering remedy and
redress for a disregard or infraction of them.”

PLEA BARGAINING FRAMEWORK IN DRUG CASES

Pursuant to the Estipona decision, the Supreme Court issued A.M. 18-03-16-SC as
amended on June 4, 2019 providing for the “PLEA BARGAINING FRAMEWORK IN
DRUGS CASES” as follows:

1. Offense Charged: Section 5, Sale, Trading, etc. of Dangerous Drugs

Methamphetamine Hydrochloride or Shabu only

Penalty is Life imprisonment to death and a fine ranging from P500,000.00 to

P10,000,000.00.

Quantity= .01 gram to .99 grams of methamphetamine hydrochloride or shabu only

Acceptable Plea Bargain: Section 12, Possession of Equipment, Instrument, Apparatus

and other Paraphernalia for Dangerous Drugs

Penalty: 6 months and 1 day to 4 years and a fine ranging from P10,000 to P50,000.

NB. The Court is given the discretion to impose a minimum period and a maximum
period to be taken from the range of the penalty provided by law. A straight penalty within the
range of 6 months and 1 day to 1 year may likewise be imposed.

Remarks: In all instances, whether or not the maximum period of the penalty imposed
is already served, drug dependency test shall be required. If accused admits drug use, or denies
it but is found positive after drug dependency test, he/she shall undergo treatment and
rehabilitation for a period of not less than 6 months. Said period shall be credited to his/her
penalty and the period of his after-care and follow-up program is penalty is still unserved. If
accused is found negative for drug use/dependency, he/she will be released on time served,
otherwise, he/she will serve his sentence in jail minus the counseling period at rehabilitation
center, However, if accused applies for probation in offenses punishable under R.A. No. 9165,
other than for illegal drug trafficking or pushing under Section 5 in relation to Sec. 24 thereof,
then the law on probation shall apply.

Quantity= 1.00 gram and above methamphetamine hydrochloride or shabu only

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 Acceptable Plea Bargain: No plea bargaining allowed

2. Offense Charged: Section 5, Sale, Trading, etc. of Dangerous Drugs Marijuana only

Penalty: Life imprisonment to death and a fine ranging from P500,000.00 to

P10,000,000.00.

Quantity= .01 gram to 9.99 grams of marijuana only

Acceptable Plea Bargain: Section 12, Possession of Equipment, Instrument, Apparatus

and other Paraphernalia for Dangerous Drugs

Penalty: 6 months and 1 day to 4 years and a fine ranging from P10,000 to P50,000.

NB. The Court is given the discretion to impose a minimum period and a maximum
period to be taken from the range of the penalty provided by law. A straight penalty within the
range of 6 months and 1 day to 1 year may likewise be imposed.

Remarks: In all instances, whether or not the maximum period of the penalty imposed
is already served, drug dependency test shall be required. If accused admits drug use, or denies
it but is found positive after drug dependency test, he/she shall undergo treatment and
rehabilitation for a period of not less than 6 months. Said period shall be credited to his/her
penalty and the period of his after-care and follow-up program is penalty is still unserved. If
accused is found negative for drug use/dependency, he/she will be released on time served,
otherwise, he/she will serve his sentence in jail minus the counseling period at rehabilitation
center, However, if accused applies for probation in offenses punishable under R.A. No. 9165,
other than for illegal drug trafficking or pushing under Section 5 in relation to Sec. 24 thereof,
then the law on probation shall apply.

Quantity= 10.00 grams of marijuana only and above

Acceptable Plea Bargain: No plea bargaining allowed

3. Offense Charged: Section 7, Employees and Visitors of a Den, Dive or Resort

Penalty: 12 years and 1 day to 20 years and a fine ranging from P100,000 to P500,000.

Acceptable Plea Bargain: Section 12, Possession of Equipment, Instrument, Apparatus

and Other Paraphernalia for Dangerous Drugs

NB: Plea Bargaining is allowed only if the person is charged solely under Section 7,
and there is no other person/s charged with violation of Section 6. Maintenance of a Den, Dive
or Resort.

Penalty: 6 months and 1 day to 4 years, and a fine from P10,000 to P50,000.

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 NB: The Court is given the discretion to impose a minimum period and a maximum
period to be taken from the range of the penalty provided by law. A straight penalty within the
range of 6 months and 1 day to 1 year may likewise be imposed.

Remarks: In all instances, whether or not the maximum period of the penalty imposed is
already served, drug dependency test shall be required. If accused admits drug use, or denies it
but is found positive after drug dependency test, he/she shall undergo treatment and
rehabilitation for a period of not less than 6 months. Said period shall be credited to his/her
penalty and the period of his/her after-care and follow-up program if penalty is still unserved.
If accused is found negative for drug use/dependency. He/she will be released on time served,
otherwise, he/she will serve his sentence in jail minus the counseling period at rehabilitation
center. However, if accused applies for probation in offense punishable under R.A. No. 9165,
other than for illegal drug trafficking or pushing under Section 5 in relation to Sec. 24 thereof,
then the law on probation shall apply.

4. Offense Charged: Section 11, paragraph 2, Possession of Dangerous Drugs

where quantity of shabu, opium, morphine, heroin, cocaine is 5 grams or more but not
exceeding 10 grams.

Penalty is 20 years to life imprisonment and a fine ranging from P400,000.00 to

P500,000.00.

Quantity= 5 grams to 9.99 grams

Acceptable Plea Bargain: Section 11, paragraph 3, Possession of Dangerous Drugs

Penalty: 12 years and 1 day to 20 years and a fine ranging from P300,000.00 to
P400,000.00

NB. The Court is given the discretion to impose a minimum period and a maximum
period to be taken from the range of the penalty provided by law.

Quantity= 10 grams and above

Acceptable Plea Bargain: No plea bargaining allowed

5. Offense Charged: Section 11, paragraph 2, Possession of Dangerous Drugs

where quantity of marijuana is 300 grams or more but not exceeding 500 grams.

Penalty is 20 years to life imprisonment and a fine ranging from P400,000.00 to

P500,000.00.

Quantity= 300 grams to 499 grams

Acceptable Plea Bargain: Section 11, paragraph 3, Possession of Dangerous Drugs

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 Penalty is 12 years and 1 day to 20 years and a fine ranging from P300,000.00 to
P400,000.00

NB. The Court is given the discretion to impose a minimum period and a maximum
period to be taken from the range of the penalty provided by law.

Quantity= 500 grams and above

Acceptable Plea Bargain: No plea bargaining allowed

6. Offense Charged: Section 11, paragraph 3, Possession of Dangerous Drugs

where quantity of shabu, opium, morphine, heroin, cocaine is less than 5 grams.

Penalty is 12 years and 1 day to 20 years and a fine ranging from P300,000.00 to
P400,000.00.

Quantity= .01 gram to 4.99 grams

Acceptable Plea Bargain: Section 12, Possession of Equipment, Instrument, Apparatus

and Other Paraphernalia for Dangerous Drugs

Penalty: 6 months and 1 day to 4 years and a fine ranging from P10,000 to P50,000.

NB. The Court is given the discretion to impose a minimum period and a maximum
period to be taken from the range of the penalty provided by law. A straight penalty within the
range of 6 months and 1 day to 1 year may likewise be imposed.

Remarks: In all instances, whether or not the maximum period of the penalty imposed
is already served, drug dependency test shall be required. If accused admits drug use, or denies
it but is found positive after drug dependency test, he/she shall undergo treatment and
rehabilitation for a period of not less than 6 months. Said period shall be credited to his/her
penalty and the period of his after-care and follow-up program is penalty is still unserved. If
accused is found negative for drug use/dependency, he/she will be released on time served,
otherwise, he/she will serve his sentence in jail minus the counseling period at rehabilitation
center. However, if accused applies for probation in offenses punishable under R.A. No. 9165,
other than for illegal drug trafficking or pushing under Section 5 in relation to Sec. 24 thereof,
then the law on probation shall apply.

7. Offense Charged: Section 11, paragraph 3, Possession of Dangerous Drugs

where quantity of marijuana is less than 300 grams.

Penalty is 12 years and 1 day to 20 years and a fine ranging from P300,000.00 to
P400,000.00.

Quantity= .01 gram to 299.99 grams

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 Acceptable Plea Bargain: Section 12, Possession of Equipment, Instrument, Apparatus
and Other Paraphernalia for Dangerous Drugs

Penalty: 6 months and 1 day to 4 years and a fine ranging from P10,000 to P50,000.

NB. The Court is given the discretion to impose a minimum period and a maximum
period to be taken from the range of the penalty provided by law. A straight penalty within the
range of 6 months and 1 day to 1 year may likewise be imposed.

Remarks: In all instances, whether or not the maximum period of the penalty imposed
is already served, drug dependency test shall be required. If accused admits drug use, or denies
it but is found positive after drug dependency test, he/she shall undergo treatment and
rehabilitation for a period of not less than 6 months. Said period shall be credited to his/her
penalty and the period of his after-care and follow-up program is penalty is still unserved. If
accused is found negative for drug use/dependency, he/she will be released on time served,
otherwise, he/she will serve his sentence in jail minus the counseling period at rehabilitation
center. However, if accused applies for probation in offenses punishable under R.A. No. 9165,
other than for illegal drug trafficking or pushing under Section 5 in relation to Sec. 24 thereof,
then the law on probation shall apply.

8. Offense Charged: Section 12, Possession of Equipment, Apparatus and Other

Paraphernalia for Dangerous Drugs

Penalty is 6 months and 1 day to 4 years and a fine ranging from P10,000 to P50,000.

Acceptable Plea Bargain: Section 15, Use of Dangerous of Drugs

Penalty: 6 months treatment and rehabilitation

Remarks: If accused admits drug use, or denies drug use but found positive after drug
dependency test.

Penalty: Undergo counselling program at rehabilitation center

Remarks: If accused found negative for drug use/dependency.

9. Offense Charged: Section 13, Possession of Dangerous Drugs during Parties,

Social Gatherings or Meetings

Penalty: Maximum penalties provided under Section 11 regardless of quantity or purity.

Quantity= 0.1 gram to 4.99 grams

Acceptable Plea Bargain: Section 12, Possession of Equipment, Instrument, Apparatus

and other Paraphernalia for Dangerous Drugs

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 Penalty: 6 months and 1 day to 4 years, and a fine from P10,000 to P50,000

NB.: The Court is given the discretion to impose a minimum period and a maximum
period to be taken from the range of the penalty provided by law. A straight penalty within the
range of 6 months and 1 day to 1 year may likewise be imposed.

Remarks: In all instances, whether or not the maximum period of the penalty imposed is
already served, drug dependency test shall be required. If accused admits drug use, or denies it
but is found positive after drug dependency test, he/she shall undego treatment and
rehabilitation for a period of not less than 6 months. Said period shall be credited to his/her
penalty and the period of his/her after-care and follow-up program if penalty is still unserved.
If accused is found negative for use/dependency. He/she will be released on time served,
otherwise, he/she will serve his sentence in jail minus the counseling period at rehabilitation
center. However, if accused applies for probation in offense punishable under R.A. No. 9165,
other than for illegal drug trafficking or pushing under Section 5 in relation to Sec. 24 thereof,
then the law on probation shall apply.

Quantity: 5 grams to 9.99 grams

Acceptable Plea Bargain: Section 11, par. 3. Possession of Dangerous Drugs

Penalty: 12 years and 1 day to 20 years and a fine ranging from P300,000 to P400,000.

N.B: The Court is given the discretion to impose a minimum period and a maximum
period to be taken from the range of the penalty provided by law.

Quantity: 10 grams and above

Acceptable Plea Bargain: No plea bargaining allowed

Quantity: .01 gram to 299 grams (marijuana)

Acceptable Plea Bargain: Section 12. Possession of Equipment, Instrument, Apparatus

and Other Paraphernalia for Dangerous Drugs

Penalty: 6 months and 1 day to 4 years, and a fine from P10,000 to P50,000.

NB: The Court is given the discretion to impose a minimum period and a maximum
period to be taken from the range of the penalty provided by law. A straight penalty within the
range of 6 months and 1 day to 1 year may likewise be imposed.

Remarks: In all instances, whether or not the maximum period of the penalty imposed is
already served, drug dependency test shall be required. If accused admits drug use, or denies it
but is found positive after drug dependency test, he/she shall undergo treatment and
rehabilitation for a period of not less than 6 months. Said period shall be credited to his/her

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penalty and the period of his/her after-care and follow-up program if penalty is still unserved.
If accused is found negative for drug use/dependency. He/she will be released on time served,
otherwise, he/she will serve his sentence in jail minus the counseling period at rehabilitation
center. However, if accused applies for probation in offense punishable under R.A. No. 9165,
other than for illegal drug trafficking or pushing under Section 5 in relation to Sec. 24 thereof,
then the law on probation shall apply.

Quantity: 300 grams to 499 grams (marijuana)

Acceptable Plea Bargain: Section 11, par. 3. Possession of Dangerous Drugs

Penalty: 12 years and 1 day to 20 years and a fine ranging from P300,000 to P400,000

N.B: The Court is given the discretion to impose a minimum period and a maximum
period to be taken from the range of the penalty provided by law.

Remarks: In all instances, whether or not the maximum period of the penalty imposed is
already served, drug dependency test shall be required. If accused admits drug use, or denies it
but is found positive after drug dependency test, he/she shall undergo treatment and
rehabilitation for a period of not less than 6 months. Said period shall be credited to his/her
penalty and the period of his/her after-care and follow-up program if penalty is still unserved.
If accused is found negative for drug use/dependency. He/she will be released on time served,
otherwise, he/she will serve his sentence in jail minus the counseling period at rehabilitation
center. However, if accused applies for probation in offense punishable under R.A. No. 9165,
other than for illegal drug trafficking or pushing under Section 5 in relation to Sec. 24 thereof,
then the law on probation shall apply.

Quantity: 500 grams and above (marijuana)

Acceptable Plea Bargain: No plea bargaining allowed

10. Offense Charged: Section 14, Possession of Equipment, Apparatus and Other
Paraphernalia for Dangerous Drugs during Parties, Social Gatherings or Meetings

Penalty is Maximum penalty in Section 12

Acceptable Plea Bargain: Section 15, Use of Dangerous of Drugs

Penalty: 6 month treatment and rehabilitation

Remarks: If accused admits drug use, or denies drug use but found positive after drug
dependency test.

Penalty: Undergo counselling program at rehabilitation center

Remarks: If accused found negative for drug use/dependency

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PLEABARGAINING NEEDS CONSENT OF THE PUBLIC PROSECUTOR OR ELSE PLEA
BARGAINING IS VOID

There are three (3) cases that have reached the Supreme Court on the question of
whether a Judge may approve a plea bargaining without the consent or over the objection of the
Public Prosecutor. In all these cases, the Supreme Court ruled in the negative.

The first of these cases is Sayre vs. Hon. Xenos, et al G.R. No. G.R. Nos. 244413 &
244415-16, February 18, 2020. In this case, Nurullaje Sayre (Sayre) was charged with
violation of Sections 5, 11, and 12, Article II of Republic Act No. (R.A.) 9165, in three (3)
separate Information. On November 9, 2017, Sayre filed a Proposal for Plea Bargaining. Sayre
proposed that he be allowed to file an Application for Probation for the penalty of 6 months
and 1 day to 4 years considering that the maximum penalty therein is less than 6 years and that
he be released from the custody of the Bureau of Jail Management and Penology City Jail upon
its approval. The proposal of Sayre is summarized as follows:

PLEA BARGAIN PROPOSED

Criminal Case BY SAYRE PURSUANT TO
OFFENSE CHARGED
No. ADMINISTRATIVE MATTER
NO. 18-03-16-SC
SECTION PENALTY SECTION PENALTY
CRC Sec. 5 Illegal Life Sec. 12 Imprisonment
416-2017 Sale of Imprisonment Possession of of 6 months
Dangerous [to death] and a Paraphernalia and 1 day to 4
Drugs (0.1029 fine ranging for dangerous years
gram of shabu) from drugs
P500,000.00 to
P10,000,000.00
(0.01-0.99
gram of shabu)
CRC Sec. 11 Illegal 12 years and 1 Sec. 12 Imprisonment
417-2017 Possession of day to 20 years Possession of of 6 months
Dangerous and a fine Paraphernalia and 1 day to 4
Drugs (0.0870 ranging from for Dangerous years
gram, 0.6543 P300,000.00- Drugs
gram, 0.0545 P400,000.00
gram, and (0.01-4.99
0.0531 gram gram of shabu)
of shabu)
CRC Sec. 12 6 months and 1 Sec. 15 Use of Penalty of
418-2017 Possession of day to 4 years Dangerous Compulsory 6-
Paraphernalia and a fine Drugs month

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 for Dangerous ranging from Rehabilitation
Drugs P10,000.00 to
P50,000.00

City Prosecutor Jennifer B. Namoc-Yasol (City Prosecutor Namoc-Yasol) filed a

Comment and Counter-Proposal in accordance with Department of Justice (DOJ) Circular No.
27 dated June 26, 2018, otherwise known as the “Amended Guidelines on Plea Bargaining for
Republic Act No. 9165,” summarized as follows:

COUNTER-PROPOSAL BY
THE PROSECUTION
Criminal Case OFFENSE CHARGED
PURSUANT TO DOJ
No. CIRCULAR NO. 27
SECTION PENALTY SECTION PENALTY
CRC Sec. 5 Illegal Life Section 11 Indeterminate
416-2017 Sale of Imprisonment paragraph 3 Penalty of 12
Dangerous and a fine Illegal years and 1
Drugs (0.1029 ranging from Possession of day to 14 years
gram of shabu) P500,000.00 to Dangerous and 8 months
P10,000,000.00 Drugs and a fine of
(0.01-0.99 P300,000.00
gram of shabu)
CRC Sec. 11 Illegal 12 years and 1 Sec. 12 Imprisonment
417-2017 Possession of day to 20 years Possession of Penalty of 6
Dangerous and a fine Paraphernalia months and 1
Drugs (0.0870 ranging from for Dangerous day to 4 years
gram, 0.6543 P300,000.00- Drugs and a fine of
gram, 0.0545 P400,000.00 P25,000.00
gram, and (0.01-4.99
0.0531 gram gram of shabu)
of shabu)
CRC Sec. 12 6 months and 1 Plead to the Indeterminate
418-2017 Possession of day to 4 years crime as Penalty of 6
Paraphernalia and a fine charged months and 1
for Dangerous ranging from day to 4 years
Drugs P10,000.00 to and a fine of
P50,000.00 P25,000.00

City Prosecutor Namoc-Yasol recommended that for the charge under Section 5 (Illegal
Sale of Dangerous Drugs), the plea bargain prescribed in DOJ Circular No. 27 is the offense
under Section 11, paragraph 3 (Illegal Possession of Dangerous Drugs) with an indeterminate
penalty of twelve (12) years to fourteen (14) years and eight (8) months and a fine of

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P300,00.00. For the charge under Section 11 (Illegal Possession of Dangerous Drugs), the City
Prosecutor recommended the plea of guilty to the offense under Section 12 (Illegal Possession
of Drug Paraphernalia with an indeterminate penalty of six (6) months and one (1) day to four
(4) years and a fine of P25,000.00, as prescribed in DOJ Circular No. 27. As to the charge
under Section 12 (Illegal Possession of Drug Paraphernalia), the City Prosecutor recommended
that Sayre plead guilty to the crime as charged with an indeterminate penalty ranging from six
(6) months and one (1) day to four (4) years and a fine of P25,000.00.

Since the parties failed to reach a consensus in so far as Criminal Case No. CRC 416-
2017 for violation of Section 5 of R.A. 9165 (Illegal Sale of Dangerous Drugs), the RTC
deferred the pre-trial to afford Sayre another opportunity to convince the prosecution to accept
his proposal. But the prosecution did not waver in its stand.

The trial court denied Sayre’s offer to bargain and his motion for reconsideration was
also denied by the trial court.

The Supreme Court ruled that a plea bargain still requires mutual agreement of the
parties and remains subject to the approval of the court. The acceptance of an offer to plead
guilty to a lesser offense is not demandable by the accused as a matter of right but is a matter
addressed entirely to the sound discretion of the trial court. Section 2, Rule 116 of the Rules of
Court expressly states:

“Sec 2. Plea of guilty to a lesser offense. - At arraignment, the accused, with

the consent of the offended party and the prosecutor, may be allowed by the trial
court to plead guilty to a lesser offense which is necessarily included in the offense
charged. After arraignment but before trial, the accused may still be allowed to
plead guilty to said lesser offense after withdrawing his plea of not guilty. No
amendment of the complaint or information is necessary.”

The use of the word “may” signifies that the trial court has discretion whether to allow
the accused to make a plea of guilty to a lesser offense. Moreover, plea bargaining requires the
consent of the accused, offended party, and the prosecutor. It is also essential that the lesser
offense is necessarily included in the offense charged.

DOJ Circular No. 27 provision pertaining to acceptable plea bargain for Section 5 of
R.A. 9165 did not violate the rule-making authority of the Court. DOJ Circular No. 27 merely
serves as an internal guideline for prosecutors to observe before they may give their consent to
proposed plea bargains.

The provision in DOJ Circular No. 27 pertaining to plea-bargaining under Section 5 to

Section 11 of R.A. 9165, penalized with imprisonment ranging from twelve (12) years and one
(1) day to twenty (20) years and a fine ranging from P300,000.00 to P400,000.00, did not
contravene the Plea Bargaining Framework found in A.M. No. 18-03-16-SC.

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 A.M. No. 18-03-16-SC is a rule of procedure established pursuant to the rule-making
power of the Supreme Court that serves as a framework and guide to the trial courts in plea
bargaining violations of R.A. 9165.

People vs. Reafor, G.R. No. 247575, November 16, 2020 did not only affirm Sayre but
went even further by holding that considering the accused’s plea of guilt and his subsequent
conviction for a lesser offense lack one of the requisites of a valid plea bargain, the plea
bargaining is void. Thus, “the judgment rendered by the RTC which was based on a void plea
bargaining is also void ab initio and cannot be considered to have attained finality for the
simple reason that a void judgment has no legality from its inception.” Thus, since the
judgment of conviction rendered against accused is void, it is only proper to resume with the
trial of the criminal case.

In this case, respondent Edwin Reafor y Comprado (respondent) was charged before
the Regional Trial Court of Naga City, Branch 24 (R TC) of the crime of Illegal Sale of
Dangerous Drugs, defined and penalized under Section 5, Article II of Republic Act No. 9165,
for allegedly selling two (2) heat-sealed transparent sachets containing a total of 0.149 gram of
shabu. During the presentation of the prosecution’s evidence, respondent filed a Motion to Plea
Bargain dated July 26, 2018, contending that as per A.M. No. 18-03-16-SC, he may be
allowed to plead guilty to a lesser offense of violation of Section 12, Article II of R.A. No.
9165. The prosecution opposed the motion, invoking Department of Justice (DOJ) Circular No.
27. In an Order dated August 24, 2018, the RTC granted respondent’s motion over the
opposition of the prosecution. Thereafter, respondent was re-arraigned and plead guilty to
violation of Section 12, Article II of R.A. No. 9165 over the objection of the prosecution, and
was subsequently convicted therefor through a Judgment dated September 6, 2018.

The Supreme Court ruled that “under the present Rules, the acceptance of an offer to
plead guilty is not a demandable right but depends on the consent of the offended party and the
prosecutor, which is a condition precedent to a valid plea of guilty to a lesser offense that is
necessarily included in the offense charged. The reason for this is that the prosecutor has full
control of the prosecution of criminal actions; his duty is to always prosecute the proper
offense, not any lesser or graver one, based on what the evidence on hand can sustain.” In view
of the foregoing, the basic requisites of plea bargaining are: (a) consent of the offended party;
(b) consent of the prosecutor; (c) plea of guilty to a lesser offense which is necessarily included
in the offense charged; and (d) approval of the court.”

“In this case, the RTC gravely abused its discretion in granting respondent’s motion to
plea bargain notwithstanding the prosecution’s opposition to the same which is grounded on
DOJ Circular No. 27. Effectively, respondent’s plea of guilty to a lesser offense (to which he
was convicted of) was made without the consent of the prosecution. Since respondent’s plea of
guilt and subsequent conviction for a lesser offense clearly lack one of the requisites of a valid
plea bargain, the plea bargaining is void. Resultantly, the judgment rendered by the RTC which
was based on a void plea bargaining is also void ab initio and cannot be considered to have
attained finality for the simple reason that a void judgment has no legality from its inception.
Thus, since the judgment of conviction rendered against respondent is void, it is only proper to
resume with the trial of Criminal Case No. 2017-0053 - which prior to respondent’s filing of

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his motion to plea bargain, was at the stage of the prosecution’s presentation of evidence -
without violating respondent’s right against double jeopardy.”

The Supreme Court further explained that “plea bargaining in criminal cases is a
process whereby the accused and the prosecution work out a mutually satisfactory disposition
of the case subject to court approval. It usually involves the defendant pleading guilty to a
lesser offense or to only one or some of the counts of a multi-count indictment in return for a
lighter sentence than that for the graver charge.” Essentially, it is a give-and-take negotiation
wherein both the prosecution and the defense make concessions in order to avoid potential
losses. The rules on plea bargaining neither creates nor takes away a right; rather, it operates as
a means to implement an existing right by regulating the judicial process for enforcing rights
and duties recognized by substantive law and for justly administering remedy and redress for a
disregard or infraction of them.”

The third case is People vs. Borras, G.R. No. 250295, March 15, 2021. Naci Borras
(Borras) was charged with violations of Sections 5 & 11, Article II of Republic Act No. 9165,
as amended by Republic Act No. 10640. While the prosecution was presenting its evidence on
May 28, 2018, Borras filed a plea bargaining proposal to withdraw his earlier plea of not guilty
in order to plead guilty to two (2) counts of Illegal Possession of Drug paraphernalia under
Section 12 of R.A. No. 9165, as amended by R.A. No. 10640. The prosecution objected on the
ground that DOJ Circular No. 061-17, the prevailing circular at that time, proscribed plea
bargaining for the crime of Illegal Sale of Dangerous Drugs under Section 5 of R.A. No. 9165,
as amended by R.A. No. 10640. The same circular decreed that plea bargaining should be done
before the prosecution commenced its presentation of evidence. Meanwhile, violation of
Section 11 of the same law may be the subject of plea bargaining to the lesser offense of illegal
use of dangerous drugs.

By Resolution dated July 20, 2018, the trial court granted Borras plea bargaining
proposal and ordered his re-arraignment despite petitioner’s objection, thus:

The Supreme Court explained again that “plea bargaining in criminal cases is a process
where the accused and the prosecution work out a mutually satisfactory disposition of the case
subject to court approval. It usually involves the defendant pleading guilty to a lesser offense or
to only one or some of the counts of a multi-count indictment in return for a lighter sentence
than that for the graver charge. Section 2, Rule 116 of the Rules of Criminal Procedure
provides:

“SECTION 2. Plea of guilty to a lesser offense. — At arraignment, the

accused, with the consent of the offended party and the prosecutor, may be allowed
by the trial court to plead guilty to a lesser offense which is necessarily included in
the offense charged. After arraignment but before trial, the accused may still be
allowed to plead guilty to said lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or information is necessary.”

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 The provision ordains that with the consent of the offended party and the prosecutor,
plea bargaining to a lesser offense which is necessarily included in the offense charged, may be
allowed.

Contrary to the position taken by the trial court and the Court of Appeals, the
conformity of the prosecutor to the proposed plea bargaining in drugs cases is not optional,
nay, to be disregarded. For the prosecutor has full control of the prosecution of criminal
actions; his duty is to always prosecute the proper offense, not any lesser or graver one, based
on what the evidence on hand can sustain. As guardian of the rights of the people, the State
files the criminal action in the name of the People of the Philippines. The prosecutor who
represents the government is duty bound to defend the public interests, threatened by crime, to
the point that it is as though he or she were the person directly injured by the offense. Viewed
in this light, the consent of the offended party, i.e. the State, will have to be secured from the
prosecutor who acts on its behalf.

Considering the foregoing irregularity, the Court is constrained to declare as invalid

both pleas of private respondent and the consequent verdict of conviction and reinstate the
charges against private respondent for violations of Sections 5 and 11 of RA 9165, as amended
by RA 10640.”

CLARIFICATORY GUIDELINES ON PLEA-BARGAINING IN DRUGS CASES

The Supreme Court, during its En Banc deliberations on July 26, 2022, reaffirmed the
primacy and exclusivity of its rule-making power under the Constitution, and guaranteed its
precedence in governing over the plea bargaining process in drugs cases.

“In the consolidated cases of People v. Montierro, (G.R No. 254564), Baldadera v.
People (G.R. No. 254564); and Re: Letter of the Philippine Judges Association Expressing its
Concern over the Ramifications of the Decisions in G.R. No. 247575 and G.R. No.
250295 (A.M. No. 21-07-16-SC), the Supreme Court En Banc underscored the stability and
independence of the Court and its rule-making power in resolving the conflict between
Department of Justice (DOJ) Circular No. 27, which prohibits plea bargaining for illegal sale of
dangerous drugs to the lesser offense of illegal possession of drug paraphernalia under
Republic Act No. 9165, or the Comprehensive Dangerous Drugs Act of 2002, and the SC’s
Resolution in A.M. No. 18-03-16-SC adopting the Plea Bargaining Framework in Drugs
Cases.

Holding that plea bargaining in the prosecution of drugs cases goes into the very matters
of fundamental constitutional rights, the Court resolved to clarify the guidelines it earlier issued
in A.M. No. 18-03-16-SC, dated April 10, 2018. Hence, while the Supreme Court takes judicial
notice of the DOJ’s efforts to amend DOJ Circular No. 27 to conform with the Plea
Bargaining Framework in Drugs Cases, the Court nevertheless issues the following guidelines
for the guidance of both the Bench and the Bar:

1. Offers for plea bargaining must be initiated in writing by way of a formal written
motion filed by the accused in court.

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 2. The lesser offense which the accused proposes to plead guilty to must necessarily be
included in the offense charged.

3. Upon receipt of the proposal for plea bargaining that is compliant with the provisions
of the Court’s Plea Bargaining Framework in Drugs Cases, the judge shall order that a drug
dependency assessment be administered. If the accused admits drug use, or denies it but is
found positive after a drug dependency test, then he/she shall undergo treatment and
rehabilitation for a period of not less than six (6) months. Said period shall be credited to
his/her penalty and the period of his/her after-care and follow-up program if the penalty is still
unserved. If the accused is found negative for drug use/dependency, then he/she will be
released on time served, otherwise, he/she will serve his/her sentence in jail minus the
counselling period at the rehabilitation center.

4. As a rule, plea bargaining requires the mutual agreement of the parties and remains
subject to the approval of the court. Regardless of the mutual agreement of the parties, the
acceptance of the offer to plead guilty to a lesser offense is not demandable by the accused as a
matter of right but is a matter addressed entirely to the sound discretion of the court.

4.1. Though the prosecution and the defense may agree to enter into a plea
bargain, it does not follow that the courts will automatically approve the proposal.
Judges must still exercise sound discretion in granting or denying plea bargaining,
taking into account the relevant circumstances, including the character of the
accused.

5. The court shall not allow plea bargaining if the objection to the plea bargaining
is valid and supported by evidence to the effect that:

5.1. the offender is a recidivist, habitual offender, known in the community

as a drug addict and a troublemaker, has undergone rehabilitation but had a relapse,
or has been charged many times; or

5.2. when the evidence of guilt is strong.

6. Plea bargaining in drugs cases shall not be allowed when the proposed plea
bargain does not conform to the Court-issued Plea Bargaining Framework in Drugs
Cases.

7. Judges may overrule the objection of the prosecution if it is based solely on the
ground that the accused’s plea bargaining proposal is inconsistent with the acceptable
plea bargain under any internal rules or guidelines of the DOJ, though in accordance with
the plea bargaining framework issued by the Court, if any.

8. If the prosecution objects to the accused’s plea bargaining proposal due to the
circumstances enumerated in item no. 5, the trial court is mandated to hear the

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prosecution’s objection and rule on the merits thereof. If the trialcourt finds the objection
meritorious, it shall order the continuation of the criminal proceedings.

9. If an accused applies for probation in offenses punishable under RA No. 9165,

other than for illegal drug trafficking or pushing under Section 5 in relation to Section 24
thereof, then the law on probation shall apply.”

Section 24. Non-Applicability of the Probation Law for Drug

Traffickers and Pushers. – Any person convicted for drug trafficking or
pushing under this Act, regardless of the penalty imposed by the Court,
cannot avail of the privilege granted by the Probation Law or Presidential
Decree No. 968, as amended.

NOTES

As worded, the disqualification for probation shall apply only when a person is
convicted for drug trafficking or pushing regardless of the penalty imposed.

Suppose a person charged with sale of illegal drugs was convicted based on a plea
bargaining with possession of drug paraphernalia, is this person eligible to apply for probation
despite the pronouncement of the trial court that he is not eligible for probation?

This question was answered in the affirmative by the Supreme Court in Pascua vs.
People, G.R. No. 250578, September 7, 2020. The Supreme Court, thus, explained:

“It is clear from both Section 24, Article II of RA 9165 and the provisions of
the Probation Law that in applying for probation, what is essential is not the offense
charged but the offense to which the accused is ultimately found guilty of.”

“In this regard, it is worth emphasizing that upon acceptance of a plea

bargain, the accused is actually found guilty of the lesser offense subject of the
plea. According to jurisprudence, “[p]lea bargaining in criminal cases is a process
whereby the accused and the prosecution work out a mutually satisfactory
disposition of the case subject to court approval. It usually involves the defendant’s
pleading guilty to a lesser offense or to only one or some of the counts of a multi-
count indictment in return for a lighter sentence than that for the graver charge.”

“Thus, regardless of what the original charge was in the Information, the
judgment would be for the lesser offense to which the accused pled guilty. This
means that the penalty to be meted out, as well as all the attendant accessory
penalties, and other consequences under the law, including eligibility for probation
and parole, would be based on such lesser offense. Necessarily, even if Pascua was
originally charged with violation of Section 5, Article II of RA 9165 in Criminal
Case No. 18805, he was ultimately convicted of the lower offense of violation of

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 Section 12, Article II of the same law. Since the foregoing effectively removed
Pascua’s case from the coverage of Section 24, Article II of RA 9165, he should, at
the very least, be allowed to apply for probation.”

Section 26. Attempt or Conspiracy. – Any attempt or conspiracy to

commit the following unlawful acts shall be penalized by the same penalty
prescribed for the commission of the same as provided under this Act:

(a) Importation of any dangerous drug and/or controlled precursor

and essential chemical;

(b) Sale, trading, administration, dispensation, delivery, distribution

and transportation of any dangerous drug and/or controlled precursor and
essential chemical;

(c) Maintenance of a den, dive or resort where any dangerous drug is

used in any form;

(d) Manufacture of any dangerous drug and/or controlled precursor

and essential chemical; and

(e) Cultivation or culture of plants which are sources of dangerous

drugs.

NOTES

In People vs. Laylo, G.R. No. 192235, July 6, 2011, PO1 Angelito Reyes (PO1 Reyes)
and PO1 Gem Pastor (PO1 Pastor), both wearing civilian clothes, were conducting anti-drug
surveillance operations in the afternoon of 17 December 2005 in Lozana Street, Calumpang,
Binangonan, Rizal. While the police officers were in front of a sari-sari store at around 5:40
p.m., Rolando Laylo (Laylo) and his live-in partner, Melitona Ritwal (Ritwal), approached
them and asked, “Gusto mong umiskor ng shabu?” PO1 Reyes replied, “Bakit mayroon ka ba?”
Laylo then brought out two (2) plastic bags containing shabu and told the police officers,
“Dos (₱200.00) ang isa.” Upon hearing this, the police officers introduced themselves as cops.
PO1 Reyes immediately arrested Laylo. Ritwal, on the other, tried to get away but PO1 Pastor
caught up with her. PO1 Pastor then frisked Ritwal and found another sachet of shabu in a SIM
card case which Ritwal was carrying. Laboratory examination showed the seized items were
positive for methylamphetamine hydrochloride or shabu, a dangerous drug.

The Supreme Court sustained the conviction of Laylo for attempt to sell dangerous
drugs.

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 “Section 26(b), Article II of RA 9165 provides:

Section 26. Attempt or Conspiracy. – Any attempt or conspiracy to commit

the following unlawful acts shall be penalized by the same penalty prescribed for
the commission of the same as provided under this Act:

xxx

(b) Sale, trading, administration, dispensation, delivery, distribution and

transportation of any dangerous drug and/or controlled precursor and essential
chemical;”

xxx

“Here, appellant intended to sell shabu and commenced by overt acts the commission of
the intended crime by showing the substance to PO1 Reyes and PO1 Pastor. The sale was
aborted when the police officers identified themselves and placed appellant and Ritwal under
arrest. From the testimonies of the witnesses, the prosecution was able to establish that there
was an attempt to sell shabu. In addition, the plastic sachets were presented in court as
evidence of corpus delicti. Thus, the elements of the crime charged were sufficiently
established by evidence.”

----OOOO----

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