Comprehensive Dangerous

Drugs of 2002 (RA 9165 as

amended by RA 10649)
Atty. Ahmedsiddique B. Dalam
Top 14, 2016 Bar Exam
Professor of Law:
University of Mindanao, College of Law
Scope of Dangerous Drugs Law
The Dangerous Drugs Act applies generally to all persons and
proscribes the sale of dangerous drugs by any person, and no person is
authorized to sell such. Said doctrine is equally applicable with respect
to possession of prohibited drugs. The law penalizes the possession of
prohibited drugs and it applies equally to all persons in this jurisdiction
and no person is authorized to possess said articles without authority
of law (People vs. Tee, G.R. Nos. 140546-47, January 20, 2003).
 From this pronouncement of SC in the case of Tee, it
appears that the presumption is that “where a person is in
possession of a prohibited or illegal drugs, the said possession
is outright illegal”. Hence, it is incumbent upon the said person
to prove that his possession of the said prohibited items is
authorized under the law.
Concept of persons under RA 9165, as
amended.
“Person” means any entity, natural or juridical
including among others, a corporation, partnership,
trust or estate, joint stock company, association,
syndicate, joint venture or other unincorporated
organization or group capable of acquiring rights or
entering into obligations. (Art. I, Sec. 3[bb], RA 9165).
Other important definitions
“Prohibited drugs” includes opium and its active
components and derivatives, such as heroin and morphine;
cocoa leaf and its derivatives, principally cocaine; alpha and
beta eucine; hallucinogenic drugs, such as mescaline, lysergic
acid diethylamide (LSD) and other substances producing
similar effects; Indian hemp and its derivatives; all
preparations made from any of the foregoing; and other
drugs, whether natural or synthetic, with the physiological
effects of a narcotic drug.
 “Regulated drug”, includes self-inducing sedatives,
such as secobarbital, phenobarbital, pentobarbital,
barbital, amobarbital and any other drug which contains
a salt or a derivative of a salt of barbituric acid; any salt,
isomer or salt of an isomer, of amphetamine, such as
Benzedrine or Dexedrine, or any drug which produces a
physiological action similar to amphetamine; and
hypnotic drugs, such as methaqualone or any other
compound producing similar physiological effects.
 “Drug dependence” means a state of psychic or
physical dependence, or both, on a dangerous drug,
arising in a person following administration or use of
that drug on a periodic or continuous basis.
 “Illegal Trafficking” means the illegal cultivation, culture,
delivery, administration, dispensation, manufacture, sale,
trading, transportation, distribution, importation, exportation
and possession of any dangerous drug and/or controlled
precursor and essential chemical.
Distinction between qualitative
determination from quantitative analysis
in drugs cases
A qualitative determination relates to the identity of the material,
whereas, a quantitative analysis requires the determination of the
percentage combination of the components of a mixture. Hence,
qualitative identification of a powder may reveal the presence of
hereoin and quinine, for instance, whereas quantitative analysis may
include the presence of 10 percent heroin and 99 percent quinine.
(People vs. Johnson, 348 SCRA 526)
The testimony of the expert who conducted the quantitative analysis is not required
to be presented in court to establish the liability of the accused under RA 9165.

The testimony of the laboratory analyst is not essential to

establish the corpus delicti for violations of the Comprehensive
Dangerous Drug Act. (People v. Fundales, Jr., G.R. No. 184606,
September 5, 2012.)
SPECIFIC ACTS PUNISHED
UNDER RA 9165

This Photo by Unknown Author is licensed under CC BY-SA

Section 4, of RA 9165 (Importation of illegal drugs)
Section 4. Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.- .The penalty
of life imprisonment to death and a 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.
Acts punished under Section 4, of RA 9165.
1. 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.
2. any person, who, unless authorized by law, shall import any controlled precursor and essential
chemical.
3. 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.
4. any person, who organizes, manages or acts as a "financier" of any of the illegal activities
prescribed in Section 4 of RA 9165.
5. any person, who acts as a "protector/coddler" of any violator of the provisions under this Section.
The diplomatic official in the No. 3 act punished under Section
4 of RA 9165 is not liable for the act mentioned therein.
The exemption afforded to the diplomatic official is found under RA 75 which a
recognition of our commitment as a signatory of UN Convention on Diplomatic Rights.
Section 4 of RA states:
“Section 4. Any writ or process sued out or prosecuted by any person in any court
of the Republic of the Philippines, or by any judge or justice, whereby the person of
any ambassador or public minister of any foreign State, authorized and received as
such by the President, or any domestic or domestic servant of any such ambassador or
minister is arrested or imprisoned, or his goods or chattels are distrained, seized, or
attached, shall be deemed void, and every person by whom the same is obtained or
prosecuted, whether as party or as attorney, and every officer concerned in executing
it, shall upon conviction, be punished by imprisonment for not more than three years
and a fine of not exceeding two hundred pesos in the discretion of the court.”
Concept of illegal importation
The crime of importation of regulated drugs is committed by
importing or bringing any regulated drug into the Philippines without
being authorized by law. (People vs. Chi Chan Liu, 746 SCRA 476)
 Section 5, RA 9165 (Sale, Trade, Use, Delivery, and
Transportation of Illegal drugs.)
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 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.
Acts punished under Section 5, RA 9165
1. 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.
2. 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.
3. any of the acts mentioned committed within 100 meters near schools.
4. use of minors or those mentally incapacitated as drug pushers.
5. when the victim is a minor.
6. being a financier or organizer of any of the acts mentioned under Section 5, RA 9165.
7. Being protector or coddler of the perpetrators under Section 5, RA 9165.
Sole factor that must be proven in illegal
transportation of dangerous drugs
To transport a dangerous drug is to carry or convey it from one place to
another. For an accused to be convicted of this crime, the prosecution must
prove its essential element: the movement of the dangerous drug from one
place to another (People vs. Asislo, 781 SCRA 131, People vs. Dimaano,
783 SCRA 449).

Note that the presumption on knowledge here is applied against the

perpetrator. I am referring to Section 3(j) of Rule 131 of the Rules of
Court. If you are in possession of an illegal article which is the subject
matter of a recently committed crime-that is- delivery of dangerous
drugs, the presumption is that you are the culprit.
Elements of illegal delivery of dangerous
drugs under Section 5, RA 9165.
To establish the guilt for the illegal delivery of dangerous drug, there
must be evidence 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 with or without
consideration. (People vs. Reyes, 751 SCRA 65)
The illegal drugs must be “actually delivered”. Without such
actual delivery, the accused will be liable only for illegal
transportation under the same Section of RA 9165.

The illegal drugs under illegal delivery must actually be delivered. It is

fact that must be clearly established and proven. Otherwise, the
presumption is that the purpose of taking the illegal drugs will be
considered only for purposes of finding liability for transportation of
illegal drugs. First reason is that, there is no attempted delivery of illegal
drugs. Second reason is that, the jurisprudence on the matter provides
that the accused must have “knowingly made the delivery with or
without consideration. (See third element of delivery of illegal drugs as
mentioned under Section 5, RA 9165, as cited in the case of People vs.
Reyes, 751 SCRA 65.)
To illustrate:
Orbin, while driving along the McArthur Highway, Davao City, was
flagged down by the operatives of PDEA. Upon search of his vehicle, it
was discovered that he was in possession of three (3) transparent
plastic sachets containing white powdery substance which was later
established, after qualitative analysis thereof, to be high-grade cocaine.
As such, Orbin was charged, among others, of delivery of illegal drugs
under Section 5 of RA 9165. Did Orbin commit illegal delivery of illegal
drugs?
Suggested answer:
Nope, Orbin may not be held liable for delivery of illegal drugs.
For successful prosecution of the said crime, jurisprudence has it
that there must be actual delivery of the illegal drugs from one place to
another preconceived and predetermined place of delivery. (People vs.
Reyes, 751 SCRA 65.)
There was no mention in the problem that Orbin did actually deliver
the illegal articles confiscated from his vehicle.
For this reason, it is submitted that Orbin’s criminal charge for
delivery of illegal is misplaced and must necessarily fail.
Transportation vs. Delivery.
Transportation Delivery
There is no a preconceived and particular place of There is a preconceived or particular place of delivery.
delivery
There is no requirement that it be delivered to a There is a requirement that the delivery must actually
particular place. be made.
Importation vs. Transportation vs.
Delivery
Importation (Section 4, RA 9165) Transportation (Section 5, RA Delivery (Section 5, RA 9165)
The purpose is to introduce within
the Philippine territory dangerous
drugs.
Mere attempt is punishable
The intended destination is broad
as it includes the entire Philippine
territory.
Transfer of dangerous is done from
outside the Philippine territory.
9165)
The purpose is to transport
dangerous drugs from one place to
another.
Must be caught in actual
commission of transportation,
otherwise, the accused will be
liable for possession of dangerous
drugs under Section 11, RA 9165.
There is no preconceived
destination or place of delivery.
Transfer or transportation is done
within the Philippines.
The purpose is to transport
dangerous drugs from one place to
another preconceived or
predetermined destination.
Must be caught in actual place of
delivery, otherwise, the accused
will be liable for possession
dangerous drugs under Section 11,
RA 9165.
There is a preconceived destination
or place of delivery
Transfer or transfer is done within
the Philippines.
The crime of delivery of illegal drugs is deemed
consummated upon reaching the intended person of
delivery, (Fabian Principle).
If the police operatives went through the operation as a buyer and his offer was accepted
by the accused as such, the dangerous or illegal drugs delivered to the former, the crime
committed is considered delivery of illegal drugs. (See People vs. Fabian, 204 SCRA 730.)
Meaning, for purposes of establishing the actual place of delivery, if the person intended
to be delivered actually received the dangerous drugs, then that person who have been
delivered is deemed the “place of delivery”. Hence, the “specific place or preconceived
place” of delivery under the elements of delivery of dangerous drugs has been complied
with.

Note: The principle laid down in the case of Fabian is important for purposes of
prosecution of violation of Section 5, RA 9165. It goes something like this: If any of the
elements of illegal sale, except delivery, will not be established by the prosecution, under
the variance doctrine, the court may convict the perpetrator considering that the element
of “actual delivery” has been complied with. As such, a conviction for illegal delivery of
dangerous drugs is well in order.
 The elements of sale of illegal drugs are the following:
(1) identities of the buyer and seller, the object and the consideration; and
2) the delivery of the thing sold and the payment therefor.

If the prosecution will not be able to prove the element of existence of

contract of sale between the parties (first element). Then it is submitted that the
accused may be convicted for delivery of illegal drugs instead, considering that all
the elements of the same are present. In the case of Fabian, the SC mentioned
that the transfer of the illegal drug to the police operative in a buy-buts operation
constitutes delivery of the illegal drugs. Again, following the variance doctrine
under Sections 4 and 5 of Rule 120 of the Rules of Court, the accused may be
held liable for delivery of illegal drugs, although not specifically designated in the
complaint or information charging the accused of sale of illegal drugs.
Sections 4 and 5 of Rule 120 of the Rules of
Court provides:
Sec. 4. Judgment in case of variance between allegation and proof. – When there
is variance between the offense charged in the complaint or information and that
proved, and the offense as charged is included in or necessarily includes the
offense proved, the accused shall be convicted of the offense proved which is
included in the offense charged, or of the offense charged which is included in the
offense proved.

Sec. 5. When an offense includes or is included in another. – An offense charged

necessarily includes the offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint or information, constitute
the latter. And an offense charged is necessarily included in the offense proved,
when the essential ingredients of the former constitute or form part of those
constituting the latter.
 But where the accused surrendered the dangerous
drugs to the police operatives, after being demanded
to do so, he could not be held liable for delivery of
illegal drugs.

The accused was charged of delivery of dangerous drugs. However, after trial,
the prosecution only established possession of dangerous drugs and not delivery of
the same since he merely surrendered the drug upon demand by the police
operative. Accused, thus, was convicted of possession of dangerous drug since this
is a lesser crime, which is necessarily included in the charge of dangerous drugs.
(People vs. Maongco, G.R. No. 196966, October 23, 2013.)
Delivery of dangerous/illegal drugs is
absorbed in sale of the same.
Delivery of dangerous drugs is absorbed in the crime of sale of dangerous
drugs.

REASON: Delivery of dangerous/illegal drugs constitutes an element of the

sale of dangerous/illegal drugs.

BASIS: Application of doctrine of evolution of crimes. Doctrine of evolution

of crimes provides that acts committed for purpose of committing a particular
criminal design is considered as part of the elements of the said criminal
design, and therefore, could not be considered as a separate and distinct
criminal intent or design. It is a specie of doctrine of absorption.
Sale of illegal drugs
In order to successfully prosecute an accused for illegal sale of
dangerous drugs, the prosecution must be able to prove the following
elements:
1. identities of the buyer and seller, the object, and the
consideration; and
2. the delivery of the thing sold and the payment therefor. (People
vs. Opiana, G.R. No. 200797, January 12, 2015.)
Simultaneous exchange of the marked money and the
prohibited drug is not necessary for purpose of proving sale of
illegal drugs.
The absence of marked money does not create a hiatus in the
prosecution evidence as long as the drug subject of the illegal transaction
was presented to the trial court. There is no rule of law which requires
that in buy-bust operations, there must be a simultaneous exchange of
the marked money and the prohibited drug between the poseur-buyer
and the pusher. (People vs. Sibunga, 601 SCRA 74.)
Note that if you go back to the elements of the crime of sale of
illegal drugs, identity lang naman ng seller, object and consideration of
the transaction ang dapat i-establish. Hindi naman required na I
present dapat ang consideration.
To illustrate (Question No. 3[2], 1996 Bar
Examination)
Pat. Buensuceso, posing as a buyer, approached Ronnie, a
suspected drug pusher, and offered to buy P300 worth of shabu. Ronnie
then left, came back five minutes later and handed Pat, Buensuceso an
aluminum foil containing the shabu. However, before Pat, Buensuceso
was able to deliver the marked money to Ronnie, the latter spotted a
policeman at a distance, whom Ronnie knew to be connected with the
Narcotics Command of the Police. Upon seeing the latter, Ronnie ran
away but was arrested thirty minutes later by other policemen who
pursued him. Under the circumstances, would you consider the crime
of sale of a prohibited drug already consummated? Explain.
Suggested answer:
Yes, the sale of prohibited drug is already consummated although
the marked money was not yet delivered.
When Ronnie handed the aluminum foil containing the shabu to Pat.
Buensuceso pursuant to their agreed sale, the crime was
consummated. Payment of the consideration is not an element of
requisite of the crime.
If ever, the marked money is only evidentiary to strengthen the case
of the prosecution.
Hence, given the foregoing, Ronnie may be held liable for sale of
illegal drugs.
However, separate is the rule as to the illegal drugs itself during
prosecution for sale of the same. Such article or illegal
contraband must be presented.
The illegal drugs itself must be presented before one may be held liable
for illegal sale of dangerous drugs under Section 5 of RA 9165 as amended.
REASON: It is the corpus delicti itself of the crime of sale illegal drugs.
(People vs. Hilario, GR No. 210610, January 11, 2018.)

Another underlying reason why we need to present the actual drugs

seaized from the accused is that it is the basis of determination as to
whether or not the requirement on chain of custody under Section 21 of RA
9165 has been complied with. Our legal basis for this is the case of People
vs. Doria, G.R. No. 125299 January 22, 1999, the Highest Tribunal
mentioned, thus:
 “Given the high concern for the due recording of the authorized movements
and custody of the seized drugs or controlled chemicals or plant sources of
dangerous drugs or laboratory equipment, the presentation as evidence in court
of the dangerous drugs subject of and recovered during the illegal sale is material
in every prosecution for the illegal sale of dangerous drugs. Without such
dangerous drugs being presented as evidence, the State does not establish
the corpus delicti, which, literally translated from Latin, refers to the body of the
crime, or the actual commission by someone of the particular offense charged.
(People vs. Doria, G.R. No. 125299 January 22, 1999.)
With crucial portions of the chain of custody not clearly accounted for and the
alleged shabu confiscated from the accused not clearly established, reasonable
doubt is thus created as to his or her guilt. An accused therefore is entitled to
acquittal under Section 11 of Article II of R.A. No. 9165.” (People vs. Hilario, supra.)
Buy-bust operation; Concept thereof.
A buy-bust operation is a form of entrapment, which in recent years has been
accepted as a valid means of arresting violators of the Dangerous Drugs Laws. (People
vs. Hilarion, G.R. No. 210610, January 11, 2018)
It is commonly employed by police officers as an effective way of apprehending law
offenders in the act of committing a crime. In a buy-bust operation, the idea to commit
a crime originates from the offender, without anybody inducing or prodding him to
commit the offense. Its opposite is instigation or inducement, wherein the police or its
agent lures the accused into committing the offense in order to prosecute him.
Instigation is deemed contrary to public policy and considered an absolutory cause.
It is valid because it is akin to an entrapment. In entrapment, as opposed to
instigation where the criminal design and malice originates from the instigator of the
crime, the criminal design originates from the offender himself.
Question No. 9, 1995 Bar Examination
Distinguished entrapment from Instigation.
Suggested Answer:
In INSTIGATION, the instigator practically induces the prospective
accused into commission of the offense and himself becomes co-
principal. In ENTRAPMENT, ways and means are resorted to for the
purpose of trapping and capturing the lawbreaker while executing his
criminal plan.
There is no rigid or hard rule in
conducting a buy bust operation.
There is no rigid or textbook method of conducting buy-bust
operations. It is of judicial notice that drug pushers sell their wares to
any prospective customer, stranger or not, in both public and private
places, with no regard for time. They have become increasingly daring
and blatantly defiant of the law. Thus, police must be flexible in their
operations to keep up with the drug pushers. (People vs. Lim, 599 SCRA
712.)
Important considerations in the validity of
buy-bust operations.
1. In buy-bust operation, the use of fluorescent powder to a buy-bust
money to prove the commission of the offense is not required by law or
jurisprudence. (People v. Aneslag, G.R. No. 185386, November 21, 2012.)
2. The absence of a prior surveillance or test-buy does not affect the
legality of the buy-bust operation as there is no textbook method of
conducting the same. (People vs. Robelo, G.R. No. 184181, November 26,
2012.)
3. When a case involves violation of the Dangerous Drugs Act, 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 be evidence to the
contrary. (Peoplev. Fernandez, G.R. No. 188841, March 6, 2013.)
 4. The presentation of the poseur-buyer is not indispensable for the successful
prosecution of the crime of illegal sale of shabu. (People v. Perondo, G.R. No.
193855, February 18, 2015.)

5. Presentation of the informant and the buy-bust operation money (or mere
photocopy) or barangay tanod is not necessary.
The presentation of the informant during trial is not per se necessary. There is no
need to present to present him if the sale of prohibited drug has been adequately
proved by the prosecution witnesses. If the elements of the offense have been
proved, the informant’s testimony would merely be corroborative and cumulative.
His non-presentation would not create a hiatus in the evidence for the prosecution.
(People vs. Sanchez, 173 SCRA, 305.)
EXEMPTIONS:
1. The exception to the rule is while the presentation of the boodle money is
not indispensable in the prosecution of a drug case, the material inconsistencies in
the testimonies of the prosecution witnesses and the non-presentation of the buy
bust money raise a reasonable doubts on the occurrence of the buy-bust
operation. (People vs. Ong, 544 SCRA 123);
2. There are reasons to believe that the arresting officers had motives to testify
falsely against the petitioner or that the informant was the poseur-buyer who
actually witnesses the entire transaction. (Quinicot vs. People, 590 SCRA 458);
3. If there is a mistake, or it was made as a form of harassment, extortion, and
abuse. (People vs. Ambih, 226 SCRA 84); lastly
4. If the testimony is absolutely necessary to determine whether the accused
had knowledge of the drug which is essential ingredient of the offense. (People vs.
Libag, 184 SCRA 707).
 However, at least one of the operatives or police
officer who handled the substance after the inventory
thereof in a buy-bust operation must be presented by
the prosecution.
The purpose of the law in requiring the prosecution to present the
testimony of the police officers who handled the substance in court is to
ascertain that the integrity and identity of the substance is preserved; that
the polices officers and laboratory technician who handled the seized
substance, undertook precautionary measures to preserve the identity and
integrity of the substance. (People vs. Balibay, 735 SCRA 1).
Meaning, under this jurisprudence, kailangan ipresent ang: (a) corpus
delicti of the crime itself; and (b) at least some of the apprehending
officers.
“Objective Test” in buy-bust operations.
In People v. Doria, the SC stressed the "objective" test in buy-bust
operations. SC ruled that in such operations, the prosecution must
present a complete picture detailing the transaction, which "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. We emphasized that the manner
by which the initial contact was made, the offer to purchase the drug,
the payment of the 'buy-bust' money, and the delivery of the illegal
drug must be the subject of strict scrutiny by courts to insure that
law-abiding citizens are not unlawfully induced to commit an offense.
Test in determining the credibility of testimony
of police officers in buy-bust operations.
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. (People vs. Valencia, 390 SCRA, 696).
The booking sheet and arrest report are not required in
prosecution for illegal sale of dangerous drugs or of any
violation under RA 9165.
The Booking Sheet and Arrest Report is not an element in proving
drugs cases, nor are they indispensable to prove said charges. As such,
when an arrested person signs a booking sheet and arrest report at a
police station, he does not admit commission of an offense nor confess
to any incriminating circumstances (People vs. Bandin, 226 SCRA 299).
The Booking Sheet and Arrest Report does not form part of the
custodial interrogation process where the presence of counsel is
required. (People vs. Olivares, 186 SCRA 536).
A police blotter report is neither indispensable
nor required in buy-bust operations.
REASON: There is no law that requires that a police blotter report is
neither indispensable nor required in buy-bust operations. Even a pre-
operation report/coordination sheet is not indispensable to prove
illegal sale of shabu. These matters are not part of the elements of the
aforesaid offense. (People vs. Unisa, 658 SCRA 305.)
Test buys are not conditions sine qua non
in a buy-bust operation
Presence or proof of conduct of test buys do not affect the integrity
of the buy-bust operations. Although test buys for dangerous drugs
provide assurance of the reliability of an informer’s tip, they are not
conditions sine qua non; their absence does not affect the validity of a
buy-bust operation and the credibility of police officers participating on
the basis of an informer’s tip. (People vs. Zheng Bai Hui, 338 SCRA
420.)
Marked-money used in the buy-bust
operation need not be presented.
The marked- money used in the conduct of buy bust operation need not be
presented as part of the prosecution’s evidence and the non-presentation thereof does
not create a hiatus for the cause of the prosecution.
In every criminal prosecution, the Constitution affords the accused presumption of
innocence until his or her guilt for the crime charged is proven beyond reasonable
doubt. The prosecution bears the burden of overcoming this presumption and proving
the liability of the accused by presenting evidence showing that all the elements of the
crime charged are present.
To sustain a conviction for the offense, of illegal sale of dangerous drug as penalized
under Section 5 of RA No. 9165, the following elements must be established:
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.
 Thus, in prosecuting a case for the sale of dangerous drugs, the
failure to present 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. (Emphasis supplied)
Evidence must be shown that the sale transaction transpired,
coupled with the presentation of the corpus delicti, i.e., the body or
substance of the crime establishing its commission. In a charge for
illegal sale of dangerous drugs, the corpus delicti is the dangerous drug
subject of the transaction. (People vs. Macud, G.R. No. 219175,
December 14, 2017.)
To illustrate (Question No. XIII (b), 2000
Bar Examination):
At about 9 o'clock in the morning, a Narcom Group laid a plan to entrap and
apprehend A, a long suspected drug dealer, through a "buy-bust" operation. At the
appointed time, the poseur-buyer approached A who was then with B. A marked
P100 bill was handed over to A who in turn, gave the poseur-buyer one (1) tea bag of
marijuana leaves. The members of the team, who were then positioned behind thick
leaves, closed in but evidently were not swift enough since A and B were able to run
away. Two days later, A was arrested in connection with another incident. It appears
that during the operations, the police officers were not able to seize the marked
money but were able to get possession of the marijuana tea bag. A was subsequently
prosecuted for violation of Section 4, Article II of Republic Act No. 6425, otherwise
known as the Dangerous Drugs Act, During the trial, the marked money was not
presented.
Can A be held liable? Explain. (2%)
Suggested answer:
Yes. A can be held liable.
The absence of the marked money will not create a hiatus in the
prosecution's evidence as long as the sale of the dangerous drugs is
adequately proven and the drug subject of the transaction is presented before
the court. There was a perfected contract of sale of the drug.
In prosecuting a case for the sale of dangerous drugs, the failure to
present 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.
All told, A’s conviction for sale of illegal drugs under Section 4 of RA 6425
(now Section 5 of RA 9165, as amended).
Informer in a buy bust operation: Concept
thereof.
An informer is one who communicates knowledge of someone having
committed or about to commit a crime to the proper authorities who by
themselves, acting independently, may obtain the evidence necessary for
the prosecution of the offender. (People vs. Bagano, 181 SCRA 747).
Police informants work incognito; to parade them in court would
destroy their usefulness. Therefore, his identity may remain confidential.
There are strong practical reasons for such continued secrecy, including
safety of the informer and the encouragement of others to report
wrongdoings to the police authorities. (People vs. De Jesus, G.R. No.
93852, January 24, 1992.)
There is no need to present the informer in a
prosecution for sale of illegal drugs: Exemptions.
1. First exemption - where the disclosure of the informer is relevant and helpful
to the defense of the accused, or is essential to a proper disposition of the case.

Non-presentation of an informer does not result in the defect of the cause of

prosecution in a criminal charge for sale of illegal drugs. Neither does it affect the
validity of the buy-bust operation conducted in relation to the said criminal charge.
However, the said non-presentation of an informant is a mere privilege that has its
own limitation, that is, fairness in the administration of criminal justice. Thus, where
the disclosure of the informer is relevant and helpful to the defense of the
accused, or is essential to a proper disposition of the case, the privilege must give
way. (People vs. Bagano, 181 SCRA 747, G.R. No. 77777, February 5, 1990.)
Nota bene:
Note that the SC used the term “privilege” in describing the tendency of the prosecution in
not presenting the informers of the operatives who conducted the buy-bust operation. This is
in fact has legal basis. Diba under the Constitution the accused has the right to meet his
accusers and their witnesses face to face? I am referring to Section 14 (2), Article III of the 1987
Constitution which provides:
“ Section 14.
xxx.
2. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to
meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused: Provided, that he has been duly notified
and his failure to appear is unjustifiable.”
 As such, the weight of the fundamental law tilts towards the side of
the accused. He has the right to meet his accusers and their witnesses
against him. In turn, because of this favorable application, the State’s
non-presentation of witnesses, which includes an informer, is a mere
privilege which must give way in instances where the said non-
presentation will most likely result in miscarriage of justice and
unfairness, to the prejudice of the accused.
To illustrate:
On August 1, 1985, Atty. Lolito Utitco of the National Bureau of Investigation (NBI) in Baguio City and
Steven F. Bostick, a special agent of the U.S. Air Force at Clark Air Base, arranged a "buy-bust" operation
against appellant who was a suspected narcotics dealer. The plan was for Bostick to pose as buyer. A civilian
informer named Clayton Emateo was to aid Bostick by introducing him to appellant.
At around 2:45 in the afternoon of the same day, Bostick and Emateo proceeded to the residence of the
latter in Baguio City to meet appellant who was there waiting. They were followed by an NBI surveillance
team. Upon reaching their destination, Emateo introduced appellant and an unnamed friend to Bostick.
Shortly thereafter, negotiations for the purchase of ten (10) kilos of marijuana began between Bostick and
appellant, with Emateo acting as interpreter. Bostick and appellant finally agreed on P800.00 as the price
per kilo of the marijuana. The group then proceeded to appellant's house at Irisan, Benguet, where he kept
the marijuana. They were all the time being trailed by the NBI team. At Irisan appellant left Bostick and
Emateo in the car. He went back to them after about fifteen minutes, carrying a large white nylon sack
(Exhibit "B"). Bostick opened the trunk of the car and appellant placed the sack inside. Bostick opened the
sack and saw several packages containing marijuana. Bostick told appellant that he will pay for the
marijuana after it has been weighed in his hotel. Appellant agreed. On the way back to his hotel in Baguio
City, Bostick activated the beeper which signalled the NBI team following them that the transaction had
taken place. The NBI team then blocked Bostick's car and arrested appellant and Emateo.
 However, during trial, it evident that Evident from Bostick's testimonies, as principal
witness for the prosecution, are mere translations and/or interpretations of what the
appellant supposedly said in the dialect to and interpreted by informant Emateo. As such,
they are pure hearsay.
With the exception of that portion of Bostick's testimony that he saw the accused-
appellant carry the sackful of marijuana, Bostick testified not on his personal knowledge
regarding the alleged ownership thereof and the appellant's purported offer to sell the
same. Bostick never understood the Kankanai dialect spoken by appellant and Emateo
and is therefore not qualified to testify against appellant in the imputation of the crime
charged. Thus, "where a witness is offered testify to the statements of another person,
spoken in a language not understood by him, but translated for him by an interpreter,
such witness is not qualified, because he does not speak from personal knowledge. All
that he can know as to the testimony which is in fact given in such a case is from the
interpretation thereof which is given by another person.
 Held:
(A) confession cannot be received in evidence by the testimony of a witness
who, although present when it was made, learned its purport through an
interpreter (US v. Chu Chio, 8 Phil. 269 [1907]).
The impropriety of introducing the testimony of Bostick is plainly evident.
What the prosecution should have done was to present Emateo himself to
testify on what actually transpired between appellant and Bostick and
thereafter be cross-examined. 
Atty. Utitco's revelation that he knew nothing of his supposed informant's
background is rather disturbing. Appellant's limb and liberty at stake, Utitco
discarded all what a prudent and thinking man would have taken in order to
establish the veracity of a story of one virtually unknown to him. Appellant
should have been, at the least, placed under surveillance (See People v.
Perodica, Jr., et al., G.R. No. 73006, September 29, 1989).
Nota bene:
It is noteworthy to point out at this stage that Bagano never raised his right under Section
14(2), Article III of the 1987 Constitution. Not even on appeal before the SC did he raise the
same. But note that it was still used and applied by SC. Since the basis of this right is the
Constitution itself, it is my submission that the same may be raised even on appeal. It cannot
be waivered considering the basis of the right is the Constitution itself. (See People vs.
Tampus, G.R. No. 181084, June 26, 2009, where the SC mentioned that an aggravating
circumstance not properly alleged in an information cannot be allowed. As such, the same
defect may be raised even on appeal considering that the right not to be affected by an
aggravating or a qualifying circumstance not mentioned in the information or complaint,
which is contained under Sections 8 and 9 of Rule 110 of the Rules of Court, has a
Constitutional underpinning, that is, the right of the accused to be informed of the nature and
cause of the accusation against him enshrined under Section 14(2) of Article III, 1987
Constitution, Dalam Notes, Criminal Procedure, 2015.)
So in that regard, magkapareho ang Tampus case and Bagano case. Since the right is
based on the Constitution, the rule is that, it cannot be waived.
 2. Second exemption – where the informant acted as poseur-buyer
or assisted the poseur-buyer in transacting with the pusher.
If the informant acted as poseur-buyer or assisted the poseur- buyer
in transacting with the buyer, his identity is not confidential.
Withholding the testimony of the informant, who acted as poseur-
buyer, during trial could not attain objective of concealing his identity
from the accused and for the personal security. The informant must be
well known if not familiar to the accused; otherwise he could not act as
poseur-buyer. (People vs. Rojo, G.R. No. 82737, July 5, 1989.)
Illegal possession of dangerous drugs
(Section 11, RA 9165.)
Elements of illegal possession of dangerous drugs are the following:
1. That the accused is in possession of the object identified as a
prohibited or regulated drug;
2. That such possession is not authorized by law; and
3. That the accused freely and consciously possessed said drugs.
(People vs. De Vera, 275 SCRA 87)
Nature of “possession” in illegal possession
of dangerous drugs.
Illegal possession of regulated drugs is mala prohibita, and, as such, criminal
intent is not an essential element. However, the prosecution must prove that the
accused had the intent to possess (animus posidendi) the drugs (?). Possession,
under the law, includes not only actual possession, but also constructive possession.
Actual possession exists when the drug is in the immediate possession or control of
the accused. On the other hand, constructive possession 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. (People vs. Rolando Zaragosa, G.R. No. 223142, January 17, 2018, citing
the case of People vs. Lagman, 593, Phil. 617, 625 [2008].)
“Animus possidendi” in illegal possession
of dangerous/prohibited drugs.
Consist of such knowledge sufficient to convict an accused in illegal
possession of illegal drugs in the absence of any satisfactory
explanation. (People vs. Dela Trinidad, G.R. No. 199898 , September 3,
2014)
Hence, animus possidendi consists of the knowledge of: 10 nature
of the possessed article as being illegal; 2) with correlative
presumption that purpose of possession of such article is illegal.
Animus possidendi is “intent to possess” as used in special
penal laws, as differentiated to general criminal intent under
Article 3 of RPC.

In the present case, a distinction should be made between criminal intent and intent to possess. While
mere possession, without criminal intent, is sufficient to convict a person for illegal possession of a
firearm, it must still be shown that there was animus possidendi or an intent to possess on the part of the
accused. Such intent to possess is, however, without regard to any other criminal or felonious intent
which the accused may have harbored in possessing the firearm. Criminal intent here refers to the
intention of the accused to commit an offense.xxx. This is not important in convicting a person under
Presidential Decree No. 1866 (or under RA 9165, as amended). Hence, in order that one may be found
guilty of a violation of the decree, it is sufficient that the accused had no authority or license to possess a
firearm (or illegal drugs under RA 9165), and that he intended to possess the same, even if such
possession was made in good faith and without criminal intent.
Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm (or illegal
drugs under RA 9165) cannot be considered a violation of a statute prohibiting the possession of this kind
of weapon (or illegal drugs), such as Presidential Decree No. 1866 (or in case of illegal drugs, RA 9165).
Thus, although there is physical or constructive possession, for as long as the animus possidendi is absent,
there is no offense committed. (Erwin Libo-on Dela Cruz vs. People, G.R. No. 209387, January 11, 2016).
To illustrate:
Andrew discovered that his brother, Andy, is a drug user. He discovered this when
he inadvertently opened Andy’s bag. Inside the said bag are several transparent
plastic sachets containing white powdery substance. After confronted by Andrew,
Andy confessed that he is using illicit drugs to sustain him in his work as a call-center
agent. According to Andy, given that he would often render graveyard duty, a small
dose of cocaine keeps him active and makes his work stint more tolerable. However,
Andy promised that he will stop using the said illicit drugs.
As such, Andrew decided to keep the illegal drugs from Andy and decided to
surrender it to the operatives. However, before he could reach the office of PDEA, a
drug-raid was conducted in the Purok where Andrew, resides. Discovered and
recovered from his possession are the same transparent sachets containing cocaine
which he retrieved from Andy. Andrew was charged with illegal possession of
dangerous drugs. Can Andrew be held liable for illegal possession of dangerous
drugs?
Answer:
No, Andrew may not be held criminally liable for possession of illegal drugs.
Where possession of illegal article or contraband is without animus possidendi, as
where there is only a temporary, incidental, casual, or harmless possession or control of
illegal drugs under RA 9165, such person in possesion cannot be considered violating a
statute prohibiting the same.
In the present case, it is succinct that Andrew’s possession of the illegal drugs is for
purpose of surrendering the same to the proper operatives. Clearly, animus possidendi on
the part of Andrew is wanting. Animus possidendi is consist of the knowledge that: 1) the
nature of the thing being possessed is illegal or prohibited; and 2) the purpose for such
possession of illegal contraband is for illegal or prohibited reasons. This is not the case for
Andrew.
Thus, although there is physical or constructive possession, for as long as the animus
possidendi is absent, there is no offense committed. (Erwin Libo-on Dela Cruz vs. People,
G.R. No. 209387, January 11, 2016).
Where the accused surrendered the dangerous drugs
to the police operatives, after being demanded to do
so, he could not be held liable for delivery of illegal
drugs, but only for possession of dangerous drugs.

The accused was charged of delivery of dangerous drugs. However, after

trial, the prosecution only established possession of dangerous drugs and not
delivery of the same since he merely surrendered the drug upon demand by
the police operative. Accused, thus, was convicted of possession of dangerous
drug since this is a lesser crime, which is necessarily included in the charge of
dangerous drugs. (People vs. Maongco, G.R. No. 196966, October 23, 2013.)
Chain of custody: Concept thereof.
To ensure that the drug specimen presented in court as evidence against the accused
is the same material seized from him or that, at the very least, a dangerous drug was
actually taken from his possession, we have adopted the chain of custody rule. The
Dangerous Drugs Board (DDB) has expressly defined chain of custody involving dangerous
drugs and other substances in the following terms in Section 1 (b) of DDB Regulation No.
1, Series of 2002:
b. "Chain of Custody" means the duly recorded authorized movements and custody of
seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory
equipment of each stage, from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction. Such record of
movements and custody of seized item shall include the identity and signature of the
person who held temporary custody of the seized item, the date and time when such
transfer of custody were made in the course of safekeeping and use in court as evidence,
and the final disposition.” (People vs. Moner, G.R. No. 202206, March 5, 2018.)
 In relation to this, Section 21 of Republic Act No. 9165 pertinently provides the following:
SECTION 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[.]
 Furthermore, Section 21(a) of the Implementing Rules and Regulations (IRR) of Republic Act No. 9165
relevantly states:
SECTION 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:
(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after
seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a
representative from the media and the Department of Justice (DOJ), and any elected public official who shall be
required to sign the copies of the inventory and be given a copy thereof; Provided, that the physical inventory and
photograph shall be conducted at the place where the search warrant is served; or at the nearest police station
or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless
seizures; Provided, further, that noncompliance with these requirements under justifiable grounds, as long as
the integrity and the evidentiary value of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and custody over said items[.] (Emphasis
supplied.)
(The basis of Section 21 (a) of IRR of RA 9165 is the case of People vs. Basilio, G.R. No. 195774, February, 23
2015.)
Question No. XIV (a), 2016 Bar
Examination:

[a] What is the "chain of custody" requirement in drug offenses?

(2.5%)
Suggested answer:
(a) "Chain of Custody" means the duly recorded authorized
movements and custody of seized drugs or controlled chemicals or
plant sources of dangerous drugs or laboratory equipment of each
stage, from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction. Such
record of movements and custody of seized item shall include the
identity and signature of the person who held temporary custody of the
seized item, the date and time when such transfer of custody were
made in the course of safekeeping and use in court as evidence, and
the final disposition. (Section 1 (b) of DDB Regulation No. 1, Series of
2002.)
Strict compliance with Chain of Custody
rule in relation to drug cases.
While testimony about a perfect chain is not always the standard
because it is almost always impossible to obtain, an unbroken chain of
custody becomes indispensable and essential when the item of real
evidence is not distinctive and is not readily identifiable, or when its
condition at the time of testing or trial is critical, or when a witness has
failed to observe its uniqueness. The same standard likewise obtains in
case the evidence is susceptible to alteration, tampering, contamination,
and even substitution and exchange. In other words, the exhibits level of
susceptibility to fungibility, alteration or tampering without regard to
whether the same is advertent or otherwise not dictates the level of
strictness in the application of the chain of custody rule.
 A unique characteristic of narcotic substances is that they are not readily
identifiable as in fact they are subject to scientific analysis to determine their
composition and nature. The Court cannot reluctantly close its eyes to the
likelihood or at least the possibility, that at any of the links in the chain of
custody over the same there could have been tampering, alteration or
substitution of substances from other cases by accident or otherwise in which
similar evidence was seized or in which similar evidence was submitted for
laboratory testing. Hence, in authenticating the same, a standard more
stringent than that applied to cases involving objects which are readily
identifiable must be applied, a more exacting standard that entails a chain of
custody of the item with sufficient completeness if only to render it improbable
that the original item has either been exchanged with another or been
contaminated or tampered with. (Mallillin vs. People, 576 Phil. 576 (2008).
To illustrate (Question No. XIV (b), 2016
Bar Examination):
Dimas was arrested after a valid buy-bust operation. Macario, the policeman who acted as poseur-
buyer, inventoried and photographed ten (10) sachets of shabu in the presence of a barangay
tanod. The inventory was signed by Macario and the tanod, but Dimas refused to sign. As Macario was
stricken with flu the day after, he was able to surrender the sachets to the PNP Crime Laboratory only
after four (4) days. During pre-trial, the counsel de oficio of Dimas stipulated that the substance
contained in the sachets examined by the forensic chemist is in fact methamphetamine hydrochloride
or shabu. Dimas was convicted of violating Section 5 of RA 9165. On appeal, Dimas questioned the
admissibility of the evidence because Macario failed to observe the requisite "chain of custody" of the
alleged "shabu" seized from him. On behalf of the State, the Solicitor General claimed that despite
non-compliance with some requirements, the prosecution was able to show that the integrity of the
substance was preserved. Moreover, even with some deviations from the requirements, the counsel
of Dimas stipulated that the substance seized from Dimas was shabu so that the conviction should be
affirmed.
xxx.
(b) Rule on the contention of the State. (2.5%)
My answer:
(b) The contention of the State must necessarily fail.
The chain of custody requirements in the Comprehensive Dangerous Drugs Act are cast in precise,
mandatory language. They are not stringent for stringency's own sake. Rather, they are calibrated to
preserve the even greater interest of due process and the constitutional rights of those who stand to suffer
from the State's legitimate use of force, and therefore, stand to be deprived of liberty, property, and, should
capital punishment be imposed, life. This calibration balances the need for effective prosecution of those
involved in illegal drugs and the preservation of the most basic liberties that typify our democratic order.
For this reason, the requirement of chain of custody must be complied with. Nevertheless, enshrined in
the law itself are the exemption to the stringent application thereof. As such, the elements in order for the
exemption to apply are the following:
1. Existence of justifiable grounds; and
2. Preservation of the integrity and the evidentiary value of the seized items. (People vs. Ancheta, G.R.
No. 197371, June 13, 2012.)
Neither of the afore-mentioned factors are present in the instant problem.
Given the foregoing, it is submitted that the criminal charge against Dimas must be dismissed for lack of
substance, both in law and jurisprudence.
Three-witness requirement under Section
21(1) of RA 9165.
Police operatives who conducted the buy-bust operation failed to comply with the
rule on chain of custody. The policeman failed to comply with three-witnesses rule
enshrined under Section 21 (1) of RA 9165 which requires that during physical
inventory and photograph-taking of the seized articles, the:
1. accused;
2. public officer (which may include the barangay tanod, barangay captain, or
any local elective official), and
3. media or NPS representative must be present.
The police operatives neither presented nor offer a justifiable grounds for such non-
compliance. However, the issue of non-compliance was raised with Section 21 (1) of
RA 9165 cannot be raised for the first time on appeal. Hence, defense of the accused
should be rejected. (People vs. Badilla, G.R. No. 218578, August 31, 2016.)
Four links in chain of custody.
The following are the four (4) links which must be satisfied with for purposes
of complying with the chain of custody principle, thus:
 1. First link the seizure and marking, if practicable, of the illegal drug recovered
from the accused by the apprehending officer; 
2. Second link, the turnover of the illegal drug seized by the apprehending
officer to the investigating officer; 
3. Third link, the turnover by the investigating officer of the illegal drug to the
forensic chemist for laboratory examination; and 
4. Fourth link, the turnover and submission of the marked illegal drug seized by
the forensic chemist to the court.
(People vs. Dahil,  745 SCRA 221 [2015].)
 The failure to present the other links of the chain of custody, is fatal to the
prosecution of the crime. As there was a failure to present the police officers who
received the drugs in court, it is safe to assume that there was a fatal non-
compliance with the rule on chain of custody under Section 21 of R.A. 9165.

The Chain of Custody rule requires that for every exhibit to be admitted, the
prosecution must present evidence that would support a finding that the matter in
question is what the proponent claims it to be. Statutory rules on preserving the
chain of custody of confiscated prohibited drugs and related items are designed to
ensure the integrity and reliability of the evidence to be presented against the
accused. Their observance is the key to the successful prosecution of illegal
possession or illegal sale of dangerous drugs. (People vs. Habana, G.R. No. 198450,
January 11, 2016).
Exemption to the rigid requirement of
Chain of Custody.
Non-compliance with the required procedure will not necessarily
result in the acquittal of the accused if:
(1) the non-compliance is due to justifiable grounds; and
(2) the integrity and the evidentiary value of the seized items are
properly preserved by the apprehending team. (People vs. Ancheta,
G.R. No. 197371, June 13, 2012.)
Instances where the exemption to the rigid
rules of chain of custody were applied.
1. Non-compliance with the required physical inventory and photograph
of the evidence confiscated will not result to appellants acquittal of the
crime charged. What is material to the prosecution for illegal sale of
dangerous drugs is the proof that the transaction or sale actually occurred,
coupled with the presentation in court of the substance seized as evidence. In
a successful prosecution for offenses involving the illegal sale of dangerous
drugs under Section 5, Article II of RA 9165, the following elements must
concur: (1) he identities of the buyer and seller, object, and consideration; and
(2) the delivery of the thing sold and the payment thereof. The establishment
of the above-stated elements will support the finding of the violation of
Section 5 of the Comprehensive Dangerous Drugs Act. (People vs. Alberto, G.
R. No. 179717, February 5, 2010.)
 2. Marking of the seized item in the police station is not fatal to the
prosecution of the case. Reasoning of Justice Castillo is that: “While
R.A. No. 9165 provides for the immediate marking of the seized item, it
does not specify a time frame when and where said marking should be
done. Marking upon immediate confiscation contemplates even
marking at the nearest police station or office of the apprehending
team.” (People vs. Basilio, G.R. No. 195774, February, 23 2015).
 3. Earnest efforts to secure the presence of the witnesses
mentioned under Section 21 of RA 9165 within the period required
under Article 125 of RPC prove futile through not fault of the arresting
officers, who face the threat of being charged with arbitrary detention
(People vs. Lim, G.R. No. 231989, September 4, 2018.)
Marking; its concept, its importance.
Marking means placing by the apprehending officer of some
distinguishing signs with his/ her initials and signature on the items
seized. (People vs. Sanchez, 569 SCRA 194.)
The importance of prompt marking cannot be denied because 1)
succeeding handlers of the dangerous drugs or related items will use
the same as reference. Also, 2) the markings operates to set apart as
evidence the dangerous drugs or related items from the other material
from the moment they were confiscated until they are disposed of at
the close of the criminal proceedings, thereby forestalling switching,
planting or contamination of evidence. (People vs. Gonzales, 695 SCRA
123.)
Marking in a place other than the place where the buy-bust
operation or raid and inventory of the seized items is allowed.

Marking of the seized item in the police station is not fatal to the
prosecution of the case. Reasoning of Justice Castillo is that: “While
R.A. No. 9165 provides for the immediate marking of the seized item, it
does not specify a time frame when and where said marking should be
done. Marking upon immediate confiscation contemplates even
marking at the nearest police station or office of the apprehending
team.” (People vs. Basilio, G.R. No. 195774, February 23, 2015).
 However, utter failure to mark or belated marking
without the presence of the accused is a fatal non-
compliance which affects the admissibility of the substance
or drugs seized.
The Chain of Custody rule requires that for every exhibit to be admitted, the
prosecution must present evidence that would support a finding that the matter in
question is what the proponent claims it to be. Statutory rules on preserving the
chain of custody of confiscated prohibited drugs and related items are designed to
ensure the integrity and reliability of the evidence to be presented against the
accused. Their observance is the key to the successful prosecution of illegal
possession or illegal sale of dangerous drugs. (People vs. Habana, G.R. No. 198450,
11 January 2016).
Possession of equipment and paraphernalia
used for dangerous drugs. (Section 12, RA 9165)
Section 12 of RA 9165 provides:
“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.”
 Section 12 of RA 9165 is not absorbed in the crime under Section 11
of the said Act, Hence, if a person is caught in possession both of
dangerous drugs and apparatus or paraphernalia used for consumption
of dangerous drugs, he or she will be held liable under Sections 11 and
12 of RA 9165.
Possession of dangerous drugs during parties, social
gatherings or meetings. (Section 13, RA 9165)
Section 13 of RA 9165 provides:
“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.”
Important considerations
1. The party, social gathering, or meeting contemplated under
Section 13 of RA 9165 must be comprised of at least three (3) persons.
2. There is no requirement under Section 13 that the party-goers
know each other. It is enough that one of them is in possession of
dangerous drugs during the said party, social gathering, or meeting.
3. Note that the person liable here is the person in possession of
dangerous drugs. The other participants in the meeting or gathering
will be liable depending on the acts they committed. It is possible that
any of the persons in the gathering may not incur any criminal liability if
he is neither using or possessing dangerous drugs.
 4. Note also that the penalty provided under Section 13 serves as
(specific) aggravating circumstance of the penalty provided under
Section 11 of RA 9165. (Boado.)
Possession of paraphernalia, apparatus, or equipment used
for consumption of dangerous drugs. (Section 14, RA 9165)

Section 14 of RA 9165 states:

“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, 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.”
Important Considerations:
1. Again, the requirement that there must be at least three (3) persons in the
gathering or meeting as required under Section 13 is also required under Section
14 of RA 9165.
2. There is no requirement under Section 13 that the party-goers know each
other. It is enough that one of them is in possession of paraphernalia or
equipment for consumption of dangerous drugs during the said party, social
gathering, or meeting.
3. Note that the person liable here is the person in possession of the
equipment. The other participants in the meeting or gathering will be liable
depending on the acts they committed. It is possible that any of the persons in the
gathering may not incur any criminal liability if he is neither using or possessing
dangerous drugs or equipment for consumption thereof.
 4. Lastly, it also serves to aggravate (as a specific aggravating
circumstance) the penalty provided under Section 12 of RA 9165.
(Boado.)
Section 15, RA 9165, Use of Dangerous
Drugs.
The penalty for use of dangerous drugs committed by a first-time
offender is a minimum of six (6) months rehabilitation. The penalty of
rehabilitation is not subject to the Indeterminate Sentence Law, not
being a prison sentence. The penalty of rehabilitation cannot be
graduated by one degree lower; hence, the privileged mitigating
circumstance of minority cannot be considered. Preventive
imprisonment may be credited in the service of the penalty of
rehabilitation. (People vs. Santiago, G.R. No. 191061, February 9,
2011.)
Confirmatory test as an element of use of
dangerous drugs.
Positive confirmatory test is an element of use of dangerous drugs
under Section 15 of RA 9165. Under Section 36 of RA 9165, the drug
tests must be performed only by authorized drug testing centers
(Nacague vs. Sulpicio Lines, G.R. No. 172589, August 8, 2010.)
Possession of dangerous drugs absorbs use
of dangerous.
The proviso under Section 15 of RA 9165 which provides:
“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 (Possession of dangerous
drugs) of this Act, in which case the provisions stated therein shall apply.”
Hence, if an accused is caught in possession of dangerous drugs and
later on found to be positive for use of dangerous drugs, the penalty of six-
rehabilitation cannot be imposed. Invariably, his liability will be governed
entirely by Section 11 of RA 9165, as mandated by Section 15 of the said
Act.
 As such, Section 15 of RA 9165 is not applicable if the person tested
is also found to have in his/her possession such quantity of any
dangerous drug provided for under Section 11 of the said law, in which
case, the such provision shall apply, subject to the rule mentioned in
the case of People vs. Martinez, G.R. No. 191366, December 13, 2010,
in relation to the afore-quoted proviso of Section 15 of RA 9165.
Lenient liability principle or “Martinez principle” and the rule
on absorption under the provision of Section 15, RA 9165.

If a person is caught in the act of using dangerous drugs, the police

can arrest him for possession of dangerous drugs. If he is found positive
for using dangerous drugs after confirmatory tests, he shall be convicted
of use of dangerous drugs under Section 15 and not possession under
Section 11, RA 9165, even though residue of dangerous drugs is found.
(People vs. Martinez, G.R. No. 191366, December 13, 2010.)
But if he is in possession of dangerous drugs other than that being
consumed by him, he is liable for possession of dangerous drugs only,
owing to the rule on absorption under the last proviso of Section 15,
RA 9165.
“Person apprehended or arrested” as used in Section 15 of RA
9165 means apprehension or arrest under any of the acts
mentioned under Article II of RA 9165, and not other wise.

The phrase “person apprehended or arrested” in Section 15 of RA

9165 cannot literally mean any person apprehended or arrested for any
crime. This phrase must be read in context and understood in
consonance with RA 9165. Section 15 comprehends persons arrested of
apprehended for unlawful acts listed under Article II of the law such as
sale or possession of dangerous drugs. Hence, any person apprehended
or arrested for a crime not related to drugs shall not be subjected to
dangerous drugs test. Thus, he cannot be convicted of use of dangerous
drugs under Section 15 of RA 9165. (Dela Cruz vs. People, G.R. No.
200748, July 23, 2014.)
Rule on plea-bargaining in drugs cases
under Section 23 of RA 9165.
In the case of Estopina, Jr. vs Hon. Lobrigo, G.R. No. 226679, August
15, 2017, the SC has this to say on the previous rule on plea-bargaining in
drugs cases, thus:
“At this point, We shall not resolve the issue of whether Section 23 of
R.A. No. 9165 is contrary to the constitutional right to equal protection of
the law in order not to preempt any future discussion by the Court on the
policy considerations behind Section 23 of R.A. No. 9165. Pending
deliberation on whether or not to adopt the statutory provision in toto or a
qualified version thereof, We deem it proper to declare as invalid the
prohibition against plea bargaining on drug cases until and unless it is
made part of the rules of procedure through an administrative circular
duly issued for the purpose.”
 So the basis of invalidity of Section 23, RA 9165 is not due to violation
of the equal protection clause under the Constitution, of the accused.
Rather, the basis of invalidity, as can be gleaned from the case, is that
Section 23 of RA 9165 violated the rule making power of SC under Section
5(5), Article VIII of the 1987 Constitution, which in turn, results in the
violation of the rudimentary principle on separation of powers of the
three great branches of the government. The SC mentioned, thus:
“While the power to define, prescribe, and apportion the jurisdiction
of the various courts is, by constitutional design, vested unto
Congress, the power to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice, and procedure
in all courts belongs exclusively to this Court (Supreme Court).”
 The SC continued:
“In Echegaray v. Secretary of Justice (Echegaray), the Court traced the evolution of its rule-
making authority, which, under the 1935 and 1973 Constitutions, had been priorly subjected
to a power-sharing scheme with Congress. As it now stands, the 1987 Constitution textually
altered the old provisions by deleting the concurrent power of Congress to amend the
rules, thus solidifying in one body the Court's rule-making powers, in line with the Framers'
vision of institutionalizing a " stronger and more independent judiciary.
xxx.
Thus, as it now stands, Congress has no authority to repeal, alter, or supplement rules
concerning pleading, practice, and procedure.
xxx.
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.
Commentary:
It is my humble submission that there was no violation of the principle
of separation of powers when the Congress, through Section 23 of RA
9165, deprived those who will be charged with violation of the
Comprehensive Dangerous Drugs law the statutory remedial procedure of
plea-bargaining. Section 10, Article XVIII of the 1987 Constitution provides:
“Section 10. All courts existing at the time of the ratification of this
Constitution shall continue to exercise their jurisdiction, until otherwise
provided by law. The provisions of the existing Rules of Court, judiciary
acts, and procedural laws not inconsistent with this Constitution shall
remain operative unless amended or repealed by the Supreme Court or
the Congress.
 Hence, this Constitutional provision mandates concurrent power of
Congress and the Highest Tribunal to amend and repeal procedural
rules. Invariably, plea-bargaining is a procedural measure which the
Congress may amend or modify by way of legislation. As such, Section
23 of RA 9165 is a valid exercise of a concurrent power vested in two
great branches, one of which is the Congress. Pero lage, Estipona, Jr. vs.
Hon. Lobrigo, G.R. No. 226679, August 15, 2017 happened. So wala
ta’y mabuhat, dawat-dawat nalang! (Dalam Notes, Criminal Law,
2017.)
Non-applicability of Probation Law for
Drug Traffickers and Drug Pushers.
Section 24 of RA 9165 provides:
“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.
However, an exemption is provided under Section 70 of RA 9165.
Section 70, RA 9165 provides:
Section 70. Probation or Community Service for a First-Time Minor Offender in Lieu of Imprisonment. –
Upon promulgation of the sentence, the court may, in its discretion, place the accused under probation,
even if the sentence provided under this Act is higher than that provided under existing law on
probation, or impose community service in lieu of imprisonment. In case of probation, the supervision
and rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination with the
Board of Pardons and Parole and the Probation Administration. Upon compliance with the conditions of
the probation, the Board shall submit a written report to the court recommending termination of
probation and a final discharge of the probationer, whereupon the court shall issue such an order.
The community service shall be complied with under conditions, time and place as may be
determined by the court in its discretion and upon the recommendation of the Board and shall apply
only to violators of Section 15 of this Act. The completion of the community service shall be under the
supervision and rehabilitative surveillance of the Board during the period required by the court. Thereafter,
the Board shall render a report on the manner of compliance of said community service. The court in its
discretion may require extension of the community service or order a final discharge.
In both cases, the judicial records shall be covered by the provisions of Sections 60 and 64 of this Act.
If the sentence promulgated by the court requires imprisonment, the period spent in the Center by the
accused during the suspended sentence period shall be deducted from the sentence to be served.
Section 70, as an exemption, applies only to first time minor
offenders who are convicted under Sections 11 and 15 of RA
9165, and not under Section 5 of the said Act.

The law is clear and leaves no room for interpretation. Any person convicted
for drug trafficking or pushing, regardless of the penalty imposed, cannot avail of
the privilege granted by the Probation Law or P.D. No. 968. The elementary rule
in statutory construction is that when the words and phrases of the statute are
clear and unequivocal, their meaning must be determined from the language
employed and the statute must be taken to mean exactly what it says. If a statute
is clear, plain and free from ambiguity, it must be given its literal meaning and
applied without attempted interpretation. This is what is known as the plain-
meaning rule or verba legis. It is expressed in the maxim, index animi sermo, or
speech is the index of intention. Furthermore, there is the maxim verba legis non
est recedendum, or from the words of a statute there should be no departure.
 Moreover, the Court of Appeals correctly pointed out that the intention of the
legislators in Section 24 of Rep. Act No. 9165 is to provide stiffer and harsher
punishment for those persons convicted of drug trafficking or pushing while extending
a sympathetic and magnanimous hand in Section 70 to drug dependents who are found
guilty of violation of Sections 11 and 15 of the Act. The law considers the users and
possessors of illegal drugs as victims while the drug traffickers and pushers as
predators. Hence, while drug traffickers and pushers, like Padua, are categorically
disqualified from availing the law on probation, youthful drug dependents, users and
possessors alike, are given the chance to mend their ways. The Court of Appeals also
correctly stated that had it been the intention of the legislators to exempt from the
application of Section 24 the drug traffickers and pushers who are minors and first time
offenders, the law could have easily declared so.
The law indeed appears strict and harsh against drug traffickers and drug pushers
while protective of drug users. (Padua vs. People, G.R. No. 168546, July 23, 2018.)
To illustrate the leniency of the law to
drug users.
A person arrested for using illegal or dangerous drugs is meted only
a penalty of six months rehabilitation in a government center, as
minimum, for the first offense under Section 15 of Rep. Act No. 9165,
while a person charged and convicted of selling dangerous drugs shall
suffer life imprisonment to death and a fine ranging from Five Hundred
Thousand Pesos (₱500,000.00) to Ten Million Pesos (₱10,000,000.00)
under Section 5, Rep. Act No. 9165.
A second time minor offender under Section 11 and 15 of RA
9165 may still apply for probation but not under Section 70 of
RA 9165.
A minor offender who is found guilty of violation or Section 11 or Section 15,
respectively of RA 9165 for the second time or more, may still apply for probation
but not under Section 70 of the said Act. The minor offender may avail of the relief
provided under Section 42 of RA 9344, which states:
“SEC. 42. Probation as an Alternative to Imprisonment. - The court may, after
it shall have convicted and sentenced a child in conflict with the law, and upon
application at any time, place the child on probation in lieu of service of his/her
sentence taking into account the best interest of the child. For this purpose,
Section 4 of Presidential Decree No. 968, otherwise known as the "Probation Law
of 1976", is hereby amended accordingly.”
However, Section 42 of RA 9344’s application is subject to the condition
provided under Section 5(m) of the said Act.
 As such, in turn, Section 42 of RA 9344 is subject to the condition
provided under Section 5(m) of the said Act. The said provision states:
“SEC. 5. Rights of the Child in Conflict with the Law. - Every child in
conflict with the law shall have the following rights, including but not
limited to:
xxx.
(m) the right to probation as an alternative to imprisonment, if
qualified under the Probation Law.xxx.
 On the other hand, Section 9 of PD 968 or the Philippine Probation Act of 1976
provides:
“Section 9. Disqualified Offenders. The benefits of this Decree shall not be
extended to those:
(a) sentenced to serve a maximum term of imprisonment of more than six years;
(b) convicted of any offense against the security of the State;
(c) who have previously been convicted by final judgment of an offense punished
by imprisonment of not less than one month and one day and/or a fine of not less
than Two Hundred Pesos;
(d) who have been once on probation under the provisions of this Decree; and
(e) who are already serving sentence at the time the substantive provisions of this
Decree became applicable pursuant to Section 33 hereof. xxx”
 Hence, assuming a minor offender will be held liable for the second time under Section 11 of RA
9165, he may still apply for probation, this time, not under Section 70 of RA 9165, but under Section
42 of RA 9344. Note that being a convicted person for more than one occasion is not a ground for
disqualification under Section 9 of PD 968. All told, the only limitation to the application of a minor
offender for probation are those limitations provided under Section 9 of Probation Act.
Note also that the general rule here is that rule provided under RA 9165, the exemption and
thus governs the case of a minor is RA 9344. Hence, Section 42 of RA 9344 must prevail over the
general provisions of RA 9165.
(See the case of People vs. Sarcia, G.R. No. 169641, September 10, 2009 as an application of the
principle I mentioned. In the said case, Section 34 of RA 9433 on suspended sentence in favor of a
minor offender prevails over the rule provided for suspended sentence for a minor first-time
offender unlike P.D. No. 603 and A.M. No. 02-1-18-SC. By way of necessary implication, this
pronouncement in the case of Sarcia modified the grant of Suspended Sentence under Section 66
of RA 9165. In turn, this principle ca also be extended to granting to granting of probation for first
time offender under Section 70 of RA 9165, in relation to Section 42 of RA 9344. Dalam Notes,
Criminal Law, 2015.)
Qualifying circumstance of drug use under
Sec. 25, RA 9165, a misnomer.
Section 25 of RA 9165 provides:
“Section 25. Qualifying Aggravating Circumstances in the
Commission of a Crime by an Offender Under the Influence of
Dangerous Drugs. – Notwithstanding the provisions of any law to the
contrary, a positive finding for the use of dangerous drugs shall be a
qualifying aggravating circumstance in the commission of a crime by an
offender, and the application of the penalty provided for in the Revised
Penal Code shall be applicable.”
 The aggravating circumstance of use of dangerous drugs in the
commission of a crime is not a qualifying circumstance. Rather, it is a
special aggravating circumstance considering that its effect is to add to
the severity of the penalty, rather than changing the nature of the
crime committed. This observation was also mentioned by Judge
Campanilla. (Campanilla, Criminal Law Reviewer, 2016)
Punishable acts under Section 26 of RA
9165.
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.
 Liability of public officials under Section 27, RA
9165, vis-à-vis application of Section 3, RA 3019.
Section 27 of RA 9165 provides:
“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.”
Acts punished under Section 27 of RA
9165:
1. Any public officer or employee misappropriating, misapplying or
failing 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 under RA 9165, as amended; and
2. 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 RA 9165, as amended.
Nota bene:
Note that the acts punished under Section 27 of RA 9165 is similar
to malversation under Article 127 of RPC. Invariably, an accused under
Section 27 of RA 9165 may be simultaneously held liable under Article
127 of RPC. There would be no double-jeopardy as the act
contemplated under Article 127 of RPC is a mala in se, on the other
hand, violation under Section 27 of RA 9165 constitutes a mala
prohibita violation.
Receipt of donation or other benefits under
second paragraph of Section 27, RA 9165.
The donee or receiver elective public official, of any gift or benefit
under second paragraph of Section 27 RA 9165 must receive the said
donation or gift after conviction of the donor or giver, for drug
trafficking as contemplated under RA 9165.
Without such conviction, said elective public officer or employee
may not be held liable under Section 27 of RA 9165. This is without
prejudice however to a possible liability for indirect bribery under
Article 211 of RPC if the reason of receiving such gift or donation is in
view of the office of such elective public officer or employee.
Question No. XVI, 2006 Bar Examination:
After receiving reliable information that Dante Ong, a notorious drug smuggler, was
arriving on PAL Flight NO. PR 181, PNP Chief Inspector Samuel Gamboa formed a group of
anti-drug agents. When Ong arrived at the airport, the group arrested him and seized his
attache case. Upon inspection inside the Immigration holding area, the attache case
yielded 5 plastic bags of heroin weighing 500 grams. Chief Inspector Gamboa took the
attache case and boarded him in an unmarked car driven by PO3 Pepito Lorbes. On the
way to Camp Crame and upon nearing White Plains corner EDSA, Chief Inspector Gamboa
ordered PO3 Lorbes to stop the car. They brought out the drugs from the case in the trunk
and got 3 plastic sacks of heroin. They then told Ong to alight from the car. Ong left with
the 2 remaining plastic sacks of heroin. Chief Inspector Gamboa advised him to keep silent
and go home which the latter did. Unknown to them, an NBI team of agents had been
following them and witnessed the transaction. They arrested Chief Inspector Gamboa and
PO3 Lorbes. Meanwhile, another NBI team followed Ong and likewise arrested him.
All of them were later charged. What are their respective criminal liabilities? (5%)
Suggested answer:
Chief Inspector Gamboa and PO3 Pepito Lorbes who conspired in taking the
attache case are liable for the following crimes defined under RA. 9165:
a) Sec. 27 for misappropriation or failure to account for the confiscated or seized
dangerous drugs.
b) Sec. 4 in relation to Sec. 3(ee) of RA 9165 for their acts as protector/coddler of
Dante Ong who imported drugs
In addition, by allowing Ong to escape prosecution for illegal importation or illegal
transportation of dangerous drugs, where the penalty is life imprisonment to death,
they are also liable for qualified bribery under Art. 211-A of the Revised Penal Code.
With respect to Dante Ong, he is guilty of illegal importation of dangerous drugs
under Sec. 4, R.A. 9165, if PR 181 is an international flight. If PR 181 is a domestic
flight, he is liable for violation of Sec. 5, RA. 9165 for illegal transportation of
dangerous drugs.
Other acts punished under RA 9165.
• Planting of dangerous drugs, controlled precursors or essential chemicals as
evidence (Sec. 29, RA 9165)
• Consenting or knowingly tolerating any violation of RA 9165 in the case of a
partner, president, director, manager, trustee, estate, administrator, or officer of
a partnership, corporation, association or any judicial entity (Sec. 30, RA 9165)
• Knowingly consenting to, tolerating, or authorizing the use of a vehicle, vessel,
aircraft, equipment or other facility as an instrument in the importation, sale,
trading, administration, dispensation, delivery, distribution, transportation, or
manufacture of dangerous drugs, or chemical diversion if the same are owned
by or under the control or supervision of the officers or juridical entities (Sec.
30, RA 9165)
• Violating any rule or regulation issued DDB pursuant to RA 9165
(Section 32, RA 9165)
• Issuance of false or fraudulent dangerous drugs test result. (Section 37,
RA 9165)
• Violation of confidentiality rule on records of drug dependents under
voluntary submission. (Section 72, RA 9165)
• Failure or refusal to appear as witness for any violation of this Act.
(Section 91, RA 9165), Note: This is without prejudice to liability for
contempt of court for ignoring a lawful order of the court.
• Delay or bungling in the handling of the prosecution of drug related
cases. (Section 92, RA 9165) Note: This is without prejudice to possible
liability under Article 208 of RPC for “Prevaricacion”.
Suspended Sentence for a first-time minor
offender. (Section 66, RA 9165)
Section 66 of RA 9165 states:
“Section 66. Suspension of Sentence of a First-Time Minor Offender. – An accused who is over fifteen (15) years of age at the
time of the commission of the offense mentioned in Section 11 of this Act, but not more than eighteen (18) years of age at the
time when judgment should have been promulgated after having been found guilty of said offense, may be given the benefits
of a suspended sentence, subject to the following conditions:
(a) He/she has not been previously convicted of violating any provision of this Act, or of the Dangerous Drugs Act of 1972,
as amended; or of the Revised Penal Code; or of any special penal laws;
(b) He/she has not been previously committed to a Center or to the care of a DOH-accredited physician; and
(c) The Board favorably recommends that his/her sentence be suspended.
While under suspended sentence, he/she shall be under the supervision and rehabilitative surveillance of the Board, under
such conditions that the court may impose for a period ranging from six (6) months to eighteen (18) months.
Upon recommendation of the Board, the court may commit the accused under suspended sentence to a Center, or to the
care of a DOH-accredited physician for at least six (6) months, with after-care and follow-up program for not more than eighteen
(18) months.
In the case of minors under fifteen (15) years of age at the time of the commission of any offense penalized under this Act,
Article 192 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended by Presidential
Decree No. 1179 shall apply, without prejudice to the application of the provisions of this Section.”
 If you look at Section 66 of RA 9165, ang daming conditions in order
for you to avail of the benefits of suspended sentence for violation of
RA 9165. One of which is that kelangan first time offender ka. However,
it would appear that the rules and conditions mentioned under Section
66 of RA 9165 are partially invalid as it encroached or required
something more than that is required by RA 9344, the substantive law
on the privileges and rights of children in conflict with the law, either
under RA 9165, or otherwise.
 The SC mentioned, thus:
“Sec. 38 of R.A. No. 9344 provides for the automatic suspension of sentence of a
child in conflict with the law, even if he/she is already 18 years of age or more at
the time he/she is found guilty of the offense charged. It reads:
Sec. 38. Automatic Suspension of Sentence. – Once the child who is under
eighteen (18) years of age at the time of the commission of the offense is found
guilty of the offense charged, the court shall determine and ascertain any civil
liability which may have resulted from the offense committed. However, instead of
pronouncing the judgment of conviction, the court shall place the child in conflict
with the law under suspended sentence, without need of application: Provided,
however, That suspension of sentence shall still be applied even if the juvenile is
already eighteen (18) of age or more at the time of the pronouncement of his/her
guilt.
 Upon suspension of sentence and after considering the various circumstances of the child,
the court shall impose the appropriate disposition measures as provided in the Supreme
Court on Juvenile in Conflict with the Law.
The above-quoted provision makes no distinction as to the nature of the offense
committed by the child in conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-
SC. The said P.D. and Supreme Court (SC) Rule provide that the benefit of suspended
sentence would not apply to a child in conflict with the law if, among others, he/she has been
convicted of an offense punishable by death, reclusion perpetua or life imprisonment. In
construing Sec. 38 of R.A. No. 9344, the Court is guided by the basic principle of statutory
construction that when the law does not distinguish, we should not distinguish. Since R.A.
No. 9344 does not distinguish between a minor who has been convicted of a capital offense
and another who has been convicted of a lesser offense, the Court should also not distinguish
and should apply the automatic suspension of sentence to a child in conflict with the law who
has been found guilty of a heinous crime. xxx.
 Nonetheless, while Sec. 38 of R.A. No. 9344 provides that suspension of sentence can
still be applied even if the child in conflict with the law is already eighteen (18) years of age
or more at the time of the pronouncement of his/her guilt, Sec. 40 of the same law limits
the said suspension of sentence until the said child reaches the maximum age of 21, thus:
Sec. 40. Return of the Child in Conflict with the Law to Court. – If the court finds that the
objective of the disposition measures imposed upon the child in conflict with the law have
not been fulfilled, or if the child in conflict with the law has willfully failed to comply with
the condition of his/her disposition or rehabilitation program, the child in conflict with the
law shall be brought before the court for execution of judgment.
If said child in conflict with the law has reached eighteen (18) years of age while under
suspended sentence, the court shall determine whether to discharge the child in
accordance with this Act, to order execution of sentence, or to extend the suspended
sentence for a certain specified period or until the child reaches the maximum age of
twenty-one (21) years. xxx”
 Meaning, what the SC is trying to say is that, the limitations provided under RA
9344 must prevail over that of RA 9165. First reason, in my humble opinion is that, it
is a later enacted law, therefore, it necessarily affected or modified the provisions of
RA 9165. Secondly, it is also my view that RA 9344 is the substantive law governing
the rights and privileges of a child in conflict with the law. Assuming for the sake of
argument that there will be a later enactment by Congress containing a condition or
limitation on the applicability of suspended sentence for a minor offender/child in
conflict with the law, it is submitted that will be rendered invalid by SC for being
violative of the said substantive rights and privileges of a child in conflict with the
espoused under RA 9344. Unless the Congress specifically and categorically
mentions in the succeeding law that it shall govern “irrespective of the provisions of
other existing or prevailing law”, then it follows that the provisions of RA 9344 must
prevail. (Dalam Notes, Criminal Law, 2015.)
Limited application of RPC principles and provisions to
violations of RA 9165 (Section 98 of RA 9165)

Section 98 of RA 9165 states:

“Section 98. Limited Applicability of the Revised Penal Code. –
Notwithstanding any law, rule or regulation to the contrary, the
provisions of the Revised Penal Code (Act No. 3814), as amended, shall
not apply to the provisions of this Act, except in the case of minor
offenders. Where the offender is a minor, the penalty for acts
punishable by life imprisonment to death provided herein shall
be reclusion perpetua to death.”
 Under Section 98 of RA 9165, notwithstanding any law, rule or
regulation to the contrary, the provisions of the RPC shall not apply to
provisions of RA 9165, except in the case of minor offenders.
Thus, if the accused is a minor, Article 68 of RPC shall apply to crime
of illegal possession of dangerous drugs because of Section 98 of RA
9165. (Campanilla, Criminal Law Reviewer, 2016, citing the cases of
People vs. Montalaba, G.R. No. 186227, July 20, 2011 and People vs.
Musa, G.R. No. 199735, October 24, 2012.)
To illustrate (Question No. XXIV, 2014 Bar
Examination)
A, a young boy aged sixteen (16) at the time of the commission of the crime, was convicted
when he was already seventeen (17) years of age for violation of Section 11 of R.A. 9165 or
Illegal Possession of Dangerous Drugs for which the imposable penalty is life imprisonment and
a fine. Section 98 of the same law provides that if the penalty imposed is life imprisonment to
death on minor offenders, the penalty shall be reclusion perpetuato death. Under R.A. 9344, a
minor offender is entitled to a privilege mitigating circumstance. (8%)
(A) May the privilege mitigating circumstance of minority be appreciated considering that
the penalty imposed by law is life imprisonment and fine?
(B) Is the Indeterminate Sentence Law applicable considering that life imprisonment has no
fixed duration and the Dangerous Drugs Law is malum prohibitum?
(C) If the penalty imposed is more than six (6) years and a notice of appeal was filed by Aand
given due course by the court, may A still file an application for probation?
(D) If probation is not allowed by the court, how will A serve his sentence?
Suggested answers:
(A) Yes. Minority as a privileged mitigating circumstance is always considered as a modifying
circumstance in the imposition of penalty of a child in conflict with the law. This is in view of the policy
behind the enactment of RA 9344.
(B) Yes. The Indeterminate Sentence Law is applicable even to special laws. Since life imprisonment
was converted into reclusion perpetua, which in turn was graduated to reclusion temporal, the
Indeterminate Sentence Law is applicable (People v. Montalaba, G.R. No. 186227, July 20, 2011).
(C) Yes, A may still file an application for probation even if he filed a notice of appeal. Section 42 of
R.A. No. 9344 provides that “The court may, after it shall have been convicted and sentenced a child in
conflict with the law, and upon application at any time, place the child on probation in lieu of service
of his/her sentence taking into account the best interest of the child.” The said section also provides
that the Probation Law is amended accordingly. The phrase “at any time” mentioned in Section 42
means the child in conflict with the law may file application for probation at any time, even beyond
the period for perfecting an appeal and even if the child has perfected the appeal from the judgment
of conviction.
(D) If probation is not allowed by the court, the minor shall serve his sentence in an agricultural
camp or other training facility in accordance with Section 51 of No. 9344.
 Notice that my suggested answer are based on the provisions of RA
9344 and the case of Montalaba. I never bothered to consult RA 9165
in view of the fact that it runs counter to the provisions of RA 9344. Yan
lang naman mga kaibigan. And with that, we are done with the
Comprehensive Dangerous Drugs Act of 2002. Do good sa inyong Bar
Exam. I wish all the best! 
-End-