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REPUBLIC ACT NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)

Introduction
Introduction

of such transaction through fraud, destruction of documents, fraudulent use of permits, misdeclaration, use of front companies or mail fraud.

Arts. 190-193 of the RPC were repealed by RA 6425 (Dangerous Drugs Act of 1972), as amended by PD 1683 and further amended by RA 7659. RA 9165, which was signed onto law by then President Macapagal-Arroyo on June 7, 2002 and which took effect on July 4, 2002, then repealed RA 6425, as amended.

Clandestine Laboratory. Any facility used for the illegal manufacture of any dangerous drug and/or controlled precursor and essential chemical.

What is the purpose of RA 9165? 1) To safeguard the integrity of its territory and the well-being of its citizenry particularly the

How does the State pursue its anti-drug policy through RA 9165?

Confirmatory Test. An analytical test using a device, tool or equipment with a different chemical or physical principle that is more specific which will validate and confirm the result of the screening test.

youth, from the harmful effects of dangerous drugs on their physical and mental well- being, and to defend the same against acts or omissions detrimental to their development and preservation.

Controlled Delivery. The investigative technique of allowing an unlawful or suspect consignment of any dangerous drug and/or controlled precursor and essential chemical, equipment or paraphernalia, or property believed to be derived directly or indirectly from any offense, to pass into, through or out of the country under the supervision of an authorized

1)

Through an integrated system of planning, implementation and enforcement of anti-drug

officer, with a view to gathering evidence to identify any person involved in any dangerous

2)

abuse policies, programs, and projects; By achieving a balance in the national drug control program so that people with legitimate

drugs related offense, or to facilitate prosecution of that offense.

3)

medical needs are not prevented from being treated with adequate amounts of appropriate medications, which include the use of dangerous drugs; and By providing effective mechanisms or measures to re-integrate into society individuals who

Controlled Precursors and Essential Chemicals. Include those listed in Tables I and II of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances as enumerated in the attached annex, which is an integral part of this Act.

have fallen victims to drug abuse or dangerous drug dependence through sustainable programs of treatment and rehabilitation.

Definition of Terms
Definition of Terms

Administer. Any act of introducing any dangerous drug into the body of any person, with or without his/her knowledge, by injection, inhalation, ingestion or other means, or of committing any act of indispensable assistance to a person in administering a dangerous drug to himself/herself unless administered by a duly licensed practitioner for purposes of medication.

Board. Refers to the Dangerous Drugs Board under Section 77, Article IX of this Act.

Centers. Any of the treatment and rehabilitation centers for drug dependents referred to in Section 75, Article VIII of this Act.

Chemical Diversion. The sale, distribution, supply or transport of legitimately imported, in- transit, manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures or in concentrated form, to any person or entity engaged in the manufacture of any dangerous drug, and shall include packaging, repackaging, labeling, relabeling or concealment

Cultivate or Culture. Any act of knowingly planting, growing, raising, or permitting the planting, growing or raising of any plant which is the source of a dangerous drug.

Dangerous Drugs. Include those listed in the Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and in the Schedules annexed to the 1971 Single Convention on Psychotropic Substances as enumerated in the attached annex which is an integral part of this Act.

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

Den, Dive or Resort. A place where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered, stored for illegal purposes, distributed, sold or used in any form.

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

Drug Dependence. As based on the World Health Organization definition, it is a cluster of physiological, behavioral and cognitive phenomena of variable intensity, in which the use of

REPUBLIC ACT NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)

psychoactive drug takes on a high priority thereby involving, among others, a strong desire or a sense of compulsion to take the substance and the difficulties in controlling substance - taking behavior in terms of its onset, termination, or levels of use.

Drug Syndicate. Any organized group of two (2) or more persons forming or joining together with the intention of committing any offense prescribed under this Act.

Employee of Den, Dive or Resort. The caretaker, helper, watchman, lookout, and other persons working in the den, dive or resort, employed by the maintainer, owner and/or operator where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered, distributed, sold or used, with or without compensation, in connection with the operation thereof.

Financier. Any person who pays for, raises or supplies money for, or underwrites any of the illegal activities prescribed under this Act.

Illegal Trafficking. The illegal cultivation, culture, delivery, administration, dispensation, manufacture, sale, trading, transportation, distribution, importation, exportation and possession of any dangerous drug and/or controlled precursor and essential chemical.

Instrument. Anything that is used in or intended to be used in any manner in the commission of illegal drug trafficking or related offenses.

Laboratory Equipment. The paraphernalia, apparatus, materials or appliances when used, intended for use or designed for use in the manufacture of any dangerous drug and/or controlled precursor and essential chemical, such as reaction vessel, preparative/purifying equipment, fermentors, separatory funnel, flask, heating mantle, gas generator, or their substitute.

Manufacture. The production, preparation, compounding or processing of any dangerous drug and/or controlled precursor and essential chemical, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and shall include any packaging or repackaging of such substances, design or configuration of its form, or labeling or relabeling of its container; except that such terms do not include the preparation, compounding, packaging or labeling of a drug or other substances by a duly authorized practitioner as an incident to his/her administration or dispensation of such drug or substance in the course of his/her professional practice including research, teaching and chemical analysis of dangerous drugs or such substances that are not intended for sale or for any other purpose.

Cannabis or commonly known as “Marijuana” or “Indian Hemp” or by its any other name. Embraces every kind, class, genus, or specie of the plant Cannabis sativa L. including, but not limited to, Cannabis americana, hashish, bhang, guaza, churrus and ganjab, and embraces every kind, class and character of marijuana, whether dried or fresh and flowering, flowering or fruiting tops, or any part or portion of the plant and seeds thereof, and all its geographic varieties, whether as a reefer, resin, extract, tincture or in any form whatsoever.

Methylenedioxymethamphetamine (MDMA) or commonly known as “Ecstasy”, or by its any other name. Refers to the drug having such chemical composition, including any of its isomers or derivatives in any form.

Methamphetamine Hydrochloride or commonly known as “Shabu”, “Ice”, “Meth”, or by its any other name. Refers to the drug having such chemical composition, including any of its isomers or derivatives in any form.

Opium. Refers to the coagulated juice of the opium poppy (Papaver somniferum L.) and embraces every kind, class and character of opium, whether crude or prepared; the ashes or refuse of the same; narcotic preparations thereof or therefrom; morphine or any alkaloid of opium; preparations in which opium, morphine or any alkaloid of opium enters as an ingredient; opium poppy; opium poppy straw; and leaves or wrappings of opium leaves, whether prepared for use or not.

Opium Poppy. Refers to any part of the plant of the species Papaver somniferum L., Papaver setigerum DC, Papaver orientale, Papaver bracteatum and Papaver rhoeas, which includes the seeds, straws, branches, leaves or any part thereof, or substances derived therefrom, even for floral, decorative and culinary purposes.

PDEA. Refers to the Philippine Drug Enforcement Agency under Section 82, Article IX of this Act.

Person. 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.

Planting of Evidence. The willful act by any person of maliciously and surreptitiously inserting, placing, adding or attaching directly or indirectly, through any overt or covert act, whatever quantity of any dangerous drug and/or controlled precursor and essential chemical in the person, house, effects or in the immediate vicinity of an innocent individual for the purpose of implicating, incriminating or imputing the commission of any violation of this Act.

REPUBLIC ACT NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)

Practitioner. Any person who is a licensed physician, dentist, chemist, medical technologist, nurse, midwife, veterinarian or pharmacist in the Philippines.

Protector/Coddler. Any person who knowingly and willfully consents to the unlawful acts provided for in this Act and uses his/ her influence, power or position in shielding, harboring, screening or facilitating the escape of any person he/she knows, or has reasonable grounds to believe on or suspects, has violated the provisions of this Act in order to prevent the arrest, prosecution and conviction of the violator.

Maximum penalty:

a) Importation 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

b) Financier”

“Protector/coddler” – 12 years and 1 day to 20 years of imprisonment and a fine

ranging from P100,000 to P500,000

 

2)

Sale,

trading, administration,

dispensation,

delivery,

distribution and

Pusher. Any person who sells, trades, administers, dispenses, delivers or gives away to another, on any terms whatsoever, or distributes, dispatches in transit or transports dangerous

transportation of dangerous drugs and/or controlled precursors and essential chemicals (Sec. 5)

drugs or who acts as a broker in any of such transactions, in violation of this Act.

Dangerous drugs Life imprisonment to death and a fine ranging from P500,000 to

P10,000,000

 

School. Any educational institution, private or public, undertaking educational operation for pupils/students pursuing certain studies at defined levels, receiving instructions from teachers,

Controlled precursors and essential chemicals 12 years and 1 day to 20 years imprisonment and a fine ranging from P100,000 to P500,000

usually located in a building or a group of buildings in a particular physical or cyber site.

Penalty is regardless of the quantity involved.

 

Maximum penalty:

 

Screening Test. A rapid test performed to establish potential/presumptive positive result.

a) Unlawful act transpires within 100 meters from the school

 

Sell. Any act of giving away any dangerous drug and/or controlled precursor and essential

Trading. Transactions involving the illegal trafficking of dangerous drugs and/or controlled

b) Drug pushers who use minors or mentally incapacitated individuals as runners, couriers and messengers, or in any other capacity

chemical whether for money or any other consideration.

precursors and essential chemicals using electronic devices such as, but not limited to, text

c) Victim of the offense is a minor or a mentally incapacitated individual, or a dangerous drug and/or a controlled precursor and essential chemical involved in any offense herein be the proximate cause of death of a victim thereof

d) “Financier”

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

“Protector/coddler” – 12 years and 1 day to 20 years of imprisonment and a fine ranging from P100,000 to P500,000

 

3)

Maintenance of a dangerous drug den, dive or resort (Sec. 6)

 

Use. - Any act of injecting, intravenously or intramuscularly, of consuming, either by chewing, smoking, sniffing, eating, swallowing, drinking or otherwise introducing into the physiological system of the body, any of the dangerous drugs.

Unlawful Acts and Penalties

1) Importation of dangerous drugs and/or controlled precursors and essential chemicals (Sec. 4)

Dangerous drugs Life imprisonment to death and a fine ranging from P500,000 to

P10,000,000

Controlled precursors and essential chemicals 12 years and 1 day to 20 years imprisonment and a fine ranging from P100,000 to P500,000

Dangerous drugs Life imprisonment to death and a fine ranging from P500,000 to

P10,000,000

Controlled precursors and essential chemicals 12 years and 1 day to 20 years imprisonment and a fine ranging from P100,000 to P500,000

Maximum penalty:

a) Dangerous drug is administered, delivered or sold to a minor who is allowed to use the same in such a place

b) Any person who organizes, manages or acts as a “financier”

Dangerous drug is the proximate cause of the death of a person using the same in such den, dive or resort Death and a fine ranging from P1,000,000 to 15,000,000

imposed on the maintainer, owner and/or operator

REPUBLIC ACT NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)

If such den, dive or resort is owned by a third person, the same shall be confiscated and escheated in favor of the government, provided that:

a) Criminal complaint shall specifically allege that such place is intentionally used in the furtherance of the crime

b) The prosecution shall prove such intent on the part of the owner to use the property for such purpose

c) The owner shall be included as an accused in the criminal complaint

“Protector/coddler” – 12 years and 1 day to 20 years of imprisonment and a fine

ranging from P100,000 to P500,000

Equipment, instrument, apparatus and other paraphernalia for dangerous drugs 12 years and 1 day to 20 years and a fine ranging from P100,000 to P500,000

Used to inject, ingest, inhale or otherwise introduce into the human body a dangerous drug 6 months and 1 day to 4 years imprisonment and a fine ranging from P10,000 to P50,000

Maximum penalty: Any person who uses a minor or mentally incapacitated individual to deliver such equipment, instrument, apparatus and other paraphernalia for dangerous drugs

8)

Possession of dangerous drugs (Sec. 11)

4)

Being employees or visitors of a dangerous drug den, dive or resort (Sec. 7)

Life imprisonment to death and a fine ranging from P500,000 to P10,000,000

12 years and 1 day to 20 years imprisonment and a fine ranging from P100,000 to

a) 10 grams or more of opium, morphine, heroin, cocaine or cocaine hydrochloride,

 

500,000

marijuana resin or marijuana resin oil, other dangerous drugs

 

b) 50 grams or more of methamphetamine hydrochloride or “shabu”

5)

Manufacture of dangerous drugs and/or controlled precursors and essential

Dangerous drugs Life imprisonment to death and a fine ranging from P500,000 to

c) 500 grams or more of marijuana

chemicals (Sec. 8)

Life imprisonment and a fine ranging from P400,000 to P500,000 quantity of shabu is 10 grams or more but less than 50 grams

 

10,000,000

20 years and 1 day to life imprisonment and a fine ranging from P400,000 to P500,000

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

 

Controlled precursors and essential chemicals 12 years and 1 day to 20 years imprisonment and a fine ranging from 100,000 to 500,000

quantities of dangerous drugs are 5 grams or more but less than 10 grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin

Aggravating circumstances:

oil, methamphetamine hydrochloride or “shabu,” or other dangerous drugs, or 300

 

a) Any phase of the manufacturing process was conducted in the presence or with the help of minor/s

b) Any phase or manufacturing process was established or undertaken within 100 meters of a residential, business, church or school premises

grams or more but less than 500 grams of marijuana

quantities of dangerous drugs are less than 5 grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil,

c) Clandestine laboratory was secured or protected with booby traps

methamphetamine hydrochloride or “shabu,” or other dangerous drugs, or less than

d) Clandestine laboratory was concealed with legitimate business operations

300 grams of marijuana

e) Employment of a practitioner, chemical engineer, public official or foreigner

 

Maximum penalty: Any person who organizes, manages or acts as a “financier”

9) Possession of equipment, instrument, apparatus and other paraphernalia for

“Protector/coddler” – 12 years and 1 day to 20 years of imprisonment and a fine

dangerous drugs (Sec. 12)

 

ranging from P100,000 to P500,000

6 months and 1 day to 4 years imprisonment and a fine ranging from P10,000 to

 

P50,000

6)

Illegal chemical diversion of controlled precursors and essential chemicals (Sec. 9)

Possession of the abovementioned shall be prima facie evidence that the possessor has used a dangerous drug and shall be presumed to have violated Sec. 15 of this Act.

12 years and 1 day to 20 years imprisonment and a fine ranging from P100,000 to

P500,000

7) Manufacture or delivery of equipment, instrument, apparatus and other paraphernalia for dangerous drugs and/or controlled precursors and other essential chemicals (Sec. 10)

10) Possession of dangerous drugs during parties, social gatherings or meetings (Sec. 13)

Maximum penalties provided for in Sec. 11, regardless of the quantity and purity of such dangerous drugs

REPUBLIC ACT NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)

11) Possession of equipment, instrument, apparatus and other paraphernalia for dangerous drugs during parties, social gatherings or meetings (Sec. 14)

Maximum penalty provided for in Sec. 12

Other Relevant Provisions, Supplemental Information, and Jurisprudence
Other Relevant Provisions, Supplemental Information, and Jurisprudence

Confiscation and forfeiture of proceeds or instruments of the unlawful act (Sec. 20)

12) Use of dangerous drugs (Sec. 15)

o

The penalty imposed for the unlawful importation, sale, trading, administration,

First offense minimum of 6 months rehabilitation in a government center

dispensation, delivery, distribution, transportation or manufacture of any dangerous

Second offense 6 years and 1 day to 12 years imprisonment and a fine ranging from P50,000 to P200,000

drugs and/or precursors and essential chemicals, cultivation or culture of plants which are sources of dangerous drugs, and the possession of any equipment, instrument,

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 in Sec. 11, in which case the provisions stated therein shall apply

apparatus and other paraphernalia for dangerous drugs including other laboratory equipment shall carry with it the confiscation and forfeiture in favor of the government, of all the proceeds and properties derived from the unlawful act, UNLESS they are the property of a third person not liable for the unlawful act.

13) Cultivation or culture of plants classified as dangerous drugs or are sources thereof (Sec. 16)

o

Those which are not of lawful commerce shall be destroyed without delay.

Life imprisonment to death and a fine ranging from P500,000 to P10,000,000

The land or portions thereof and/or greenhouses on which any of said plants is cultivated or cultured shall be confiscated and escheated in favor of the State, unless the owner thereof can prove lack of knowledge of such cultivation or culture despite the exercise of due diligence on his/her part

Maximum penalty:

a) If the land involved is part of the public domain

b) Any person who organizes, manages or acts as a “financier”

c) “Protector/coddler” – 12 years and 1 day to 20 years of imprisonment and a fine ranging from P100,000 to P500,000

14) Failure to maintain and keep original records of transactions on dangerous drugs and/or controlled precursors and essential chemicals (Sec. 17)

1 year and 1 day to 6 years imprisonment and a fine ranging from P10,000 to P50,000

Additional penalty:

a) Revocation of license to practice his/her profession, in case of a practitioner

b) Revocation of license of the business, in case of a manufacturer, seller, importer, distributor, dealer or retailer

15) Unnecessary prescription of dangerous drugs (Sec. 18)

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

Drug traffickers and pushers cannot avail of the privilege granted by the Probation Law. (Sec. 24)

A positive finding for the use of dangerous drugs is a qualifying aggravating circumstance in the commission of a crime by an offender. (Sec. 25)

Attempt or conspiracy to commit is penalized by the same penalty prescribed for the commission in the following cases (Sec. 26) MC SIM

a) Manufacture of any dangerous drug and/or controlled precursor and essential chemical

b) Cultivation or culture of plants which are sources of dangerous drugs

c) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical

d) Importation of any dangerous drug and/or controlled precursor and essential chemical

e) Maintenance of a den, dive or resort where any dangerous drug is used in any form

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 (Sec. 27)

Additional penalty:

o

Life imprisonment to death and a fine ranging from P500,000 to P10,000,000, in

 

a)

Revocation of license to practice

addition to absolute perpetual disqualification from any public office

 

o

Any elective local or national official found to have benefited from the proceeds

16) Unlawful prescription of dangerous drugs (Sec. 19)

of the trafficking of dangerous drugs, or have received any financial or material

Life imprisonment to death and a fine ranging from P500,000 to P10,000,000

contributions or donations from natural or juridical persons found guilty of trafficking

REPUBLIC ACT NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)

 

dangerous drugs shall be removed from office and perpetually disqualified from holding any elective or appointive position in the government.

o

If applicant is issued a certification that he is a drug dependent, the Court shall order him/her to undergo treatment and rehabilitation in a Center designated by the Board for not less than 6 months.

Criminal liability of government officials and employees (Sec. 28)

o

Drug dependent may be placed under the care of a DOH-accredited physician

a) Maximum penalties of the unlawful acts provided for in this Act shall be imposed, and

when:

b) Absolute perpetual disqualification from any public office

a) There is no near or accessible Center

 

b) Drug dependent is (1) below 18 years of age and (2) is a first-time offender and

Criminal liability for planting of evidence (Sec. 29)

 

(3) non-confinement in a Center will not pose a serious danger to his/her family

o

Death

or community

Criminal liability of officers of partnerships, corporations, associations or other juridical entities (Sec. 30)

o

Confinement shall not exceed 1 year, after which the Court and the Board shall be apprised by the head of the Center of the status of said drug dependent and whether further confinement is needed.

o If abovementioned officers consent to or knowingly tolerate violations of this Act, they shall be held criminally liable as a co-principal.

Additional penalty if offender is an alien (Sec. 31)

o In addition to the penalties prescribed, the alien offender shall, after service of sentence, be deported immediately without further proceedings.

Exemption from the criminal liability under the voluntary submission program (Sec. 55)

o A drug dependent under the voluntary submission program who is finally discharged

from confinement shall be exempt from criminal liability subject to the following conditions: CN NP

 

1)

He/she has Complied with the rules and regulations of the Center, the

Accessory penalties (Sec. 35)

applicable rules and regulations of the Board, for at least 18 months following

 

o

Disqualification from exercising

temporary discharge from confinement or, in the case of a dependent placed under

 

a) Civil rights such as but not limited to:

the care of the DOH-accredited physical, the after-care program and follow-

i) Rights of parental authority or guardianship

up schedule formulated by the DSWD and approved by the Board.

ii) Rights to dispose of property by any act or any conveyance inter vivos

2)

He/she has Never been charged or convicted of any offense punishable under

b) Political rights such as but not limited to:

RA 9165, the Revised Penal Code or any special penal laws.

i) Right to vote

3)

He/she has No record of escape from a Center, or that if he/she had escaped,

ii) Right to be voted for

he/she surrendered by himself/herself within 1 week from the date of escape.

4)

Voluntary submission of a drug dependent to confinement, treatment and rehabilitation (Sec. 54)

He/she Poses no serious danger to himself/herself, his/her family or the community.

o

By whom made:

Filing of charges against a drug dependent who is not rehabilitated under the

a) Drug dependent or any person who violates Sec. 15,

voluntary submission program (Sec. 58)

b) His/her parent,

o

If not rehabilitated after the second commitment to the Center, he/she shall, upon

c) Spouse,

recommendation of the Board, be charged for violation of Sec. 15 and prosecuted.

d) Guardian, or

o

If convicted, his/her period of confinement and rehabilitation shall be credited

e) Relative within the 4 th degree of consanguinity or affinity

in the service of his/her sentence.

o

Application for treatment and rehabilitation is made to the Board or its duly recognized representative.

o

After the Board brings the matter to the Court, the latter will order that the applicant be examined for drug dependency.

REPUBLIC ACT NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)

Compulsory confinement of a drug dependent who refuses to apply under the voluntary submission program (Sec. 61)

o When the offense is for violation of Sec. 15 and the accused is not a recidivist, the penalty thereof shall be deemed served in the Center upon his/her release.

o

Upon petition by the Board or any of its authorized representatives, a drug dependent shall be confined for treatment and rehabilitation in any Center duly designated or accredited for the purpose.

Prescription of the offense charged against a drug dependent under the compulsory submission program

o

A petition for the confinement of an alleged drug dependent may be filed by any person authorized by the Board with the RTC of the province or city where such

o

Period of prescription shall not run during the time that the drug dependent is under confinement or under the treatment and rehabilitation program approved by the Board.

person is found.

o

Upon certification of the Center that he/she may temporarily be discharged, the

o

The court shall then fix a date for hearing, and a copy of such order shall be served on the alleged drug dependent and the one having charge of him.

court shall order his/her release on condition that he/she shall report to the Board through the DOH for after-care and follow-up treatment for a period

o

If warranted, the court shall order examination to be conducted by 2 physicians

not exceeding 18 months.

accredited by the Board.

o

If during such time the Board certifies his/her complete rehabilitation, the court

Should the drug dependent escape from the Center, he/she may resubmit

A drug dependent who is finally discharged from confinement shall be exempt

o

If both physicians conclude that respondent is not a drug dependent, he/she shall be discharged.

shall order his/her final discharge for the immediate resumption of the trial for which he/she is originally charged. On the other hand, if the Board finds that he/she requires

o

If either physician finds him to be a dependent, a hearing shall be conducted,

further treatment and rehabilitation, it shall report to the court which shall order

taking into consideration all relevant evidence. If the court finds him a drug dependent, it shall issue an order for his/her commitment to a Center under the supervision of the DOH.

o

his/her recommitment.

himself/herself for confinement within 1 week or date of escape. If, however,

o

The order of discharge or order of confinement or commitment shall be issued not later than 15 days from the filing of the petition.

the drug dependent does not resubmit himself/herself, the Board may apply with the court for the issuance of the recommitment order. Upon proof of previous

Compulsory submission of a drug dependent charged with an offense to treatment and rehabilitation (Sec. 62)

o

commitment, the court shall issue such order. If he/she should escape again, he/she shall no longer be exempt from criminal liability for use of any dangerous drug.

o

If a person charged with an offense punishable by imprisonment of less than 6 years and 1 day is found by the prosecutor or by the court, to be a drug dependent, proceedings shall be suspended and copies of the record of the case shall be transmitted to the Board.

from criminal liability under Sec. 15. On the other hand, a drug dependent who is not rehabilitated after a second commitment shall, upon conviction, suffer the same penalties provided for under Sec. 15.

o

If, after medical examination, the Board determines that commitment is required

If the court finds him to be a drug dependent, it shall order his/her commitment to a

Provisions applicable to first-time minor offender

by public interest, it shall file a petition with the RTC of the province or city where

1)

Suspension of sentence of a first-time minor offender (Sec. 66)

o

the accused is being investigated or tried.

Center.

- If accused is over 15 years of age at the time of the commission of the offense in Sec. 11, but not more than 18 years of age at the time when judgment should have been promulgated after having been found guilty,

o

The head of said Center shall submit to the court every 4 months, or as often as the

his/her sentence may be suspended, subject to the following: NNF

court may require, a written report on the progress of the treatment.

a) No previous conviction of violation of any provisions of RA 9165, RPC or of

o

If the dependent is rehabilitated, as certified by the Center and the Board, he/she

His/her prosecution shall then be instituted or shall continue. If convicted, but

any special penal laws;

o

shall be returned to the court for his/her discharge therefrom.

b) No previous commitment to a Center or to the care of a DOH-accredited physician;

accused is certified by the Center to have maintained good behavior, the judgment

c) Favorable recommendation of the Board

shall indicate that he/she shall be given full credit for the period he/she was confined

- He/she shall be under supervision and rehabilitative surveillance of the Board for

in the Center.

a period from 6 months to 18 months.

REPUBLIC ACT NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)

- 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 6 months, with after-care and follow-up program not more than 18 months.

- In case of minors under 15 years of age at the time of commission, PD 604 (Child and Youth Welfare Code), as amended shall apply.

2)

Discharge after compliance with conditions of suspended sentence of a first- time minor offender

- Upon favorable recommendation of the Board, the court shall discharge the accused and dismiss all proceedings.

- The court shall then enter an order to expunge all official records, other than the confidential record to be retained by the DOJ. Such order, which shall be kept confidential, shall restore the accused to his/her status prior to the case.

- He/she shall not be held thereafter to be guilty of perjury, concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related thereto in response to an inquiry.

3)

Privilege of suspended sentence to be availed of only once by a first-time minor offender

4)

Promulgation of sentence for first-time minor offender

-

If accused violates any of the conditions of his/her suspended sentence and the applicable rules and regulations of the Board, the court shall pronounce judgment of conviction and he/she shall then serve sentence.

5)

Probation or community service for a first-time minor offender in lieu of imprisonment (Sec. 70)

a)

Probation

 

- The accused may be placed under probation even if the sentence provided is higher than that provided under existing laws on probation, or render community service in lieu of imprisonment.

- 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 final discharge of the probationer, whereupon the court shall issue such an order.

b)

Community service

- Shall apply only to violators of Sec. 15.

- Under the supervision and rehabilitative surveillance of the Board.

- Thereafter, the Board shall render a report on compliance, and the court may require extension of community service or order a final discharge.

- Period spent in the Center during suspended sentence shall be deducted from the sentence to be served.

A parent, spouse or guardian who refuses to cooperate with the Board or any concerned agency, without valid reasons, may be cited for contempt by the court. (Sec. 73)

In importation of dangerous drugs, there must be proof that the ship came from a foreign port.

When a foreign vessel is anchored in any of our ports after arriving direct from a foreign country, mere possession of illegal drugs therein is punishable. HOWEVER, when such vessel is in transit, it is not punishable.

Elements of Illegal Sale

Taken from People vs. Evangelista, 534 SCRA 245 and People vs. Santiago, 539 SCRA 198:

a) Identities of the buyer, seller, object (thing to be sold) and consideration (price)

b) Delivery of the thing sold and payment of the price

There are 2 additional details from People vs. Pendatun, 434 SCRA 148:

a) The accused sold and delivered the drug to another person

b) He knew that he sold and delivered a dangerous drug

Kinds of Possession Actual and constructive possession. Constructive possession happens when the drug is under the control of the accused or if he has the right to exercise dominion and control over the place where the drugs are. Constructive possession can be exclusive as well as joint. (People vs. Huang, 439 SCRA 350) People vs. Tira (430 SCRA 134) gives us 2 sets of elements for actual possession:

Illegal drugs:

a) Actual possession of an illegal drug

b) Possession is not authorized by law

c) Accused freely and consciously possessed the drug

Controlled precursors and essential chemicals/regulated drugs:

a) Accused is found in possession of a regulated drug

b) He is not authorized by law or duly-constituted authority (ex. he doesn't have a doctor's prescription)

c) He knows that the drug is regulated

REPUBLIC ACT NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)

In both instances (sale and possession of illegal drugs), the State has to prove as well the corpus delicti, the body of the crime. (People v. Coreche) It must be shown that the

Possession vs. Sale

Receipt of Payment

 

plastic container when it was handed to him and testify on the procedure he took afterwards to preserve its integrity.

suspected substance the police officers seized from the accused is the same thing presented in court during the trial. (People v. Ditona)

Possession and sale are different crimes. When a person is arrested while selling drugs, the possession of the drugs he has are absorbed into the sale. Hence, the only crime committed is sale (People vs. Catan, 205 SCRA 235.) The EXCEPTION is if the accused sold

 

3)

If sealing has not been made, prosecution would have to present every police officer, messenger, laboratory technician, and storage personnel, the entire chain of custody, no matter how briefly one’s possession has been, in order to testify that the substance has not been tampered with or substituted while in his care.

the drugs but has some more in his possession (People vs. Angeles (218 SCRA 352.) If

o

Exceptions to chain of custody requirement

that happens, he will be tried for both possession and sale.

- Non-compliance with the chain of custody requirement does not render an accused’s arrest illegal or make the items seized inadmissible. What is imperative is “the preservation of the integrity and the evidential value of the seized

A

basic rule in civil law is that there is already a sale when the seller agrees to sell and the

buyer agrees to buy. This is also considered in RA 9165. There is already a sale when the buyer agrees to buy and the seller agrees to sell. Consequently, payment of the money for a buy-bust operation isn't necessary anymore (People vs Yang, 423 SCRA 82.) In fact, even if the "buyer" did not have the money, there is already a sale if he agreed to buy (People vs. Macasa 229 SCRA 422.)

 

items as the same would be utilized in the determination of the guilt or innocence of the accused.”

- The prosecution must recognize and explain the lapse or lapses in the prescribed procedures and must likewise demonstrate that the integrity and evidentiary value of the evidence seized have been preserved.

o

Physical inventory and photograph requirement under Sec. 21 of the IRR

Chain of custody in drugs cases

presented about every link in the chain, from the moment the item is seized up to the time

vis-à-vis marking of seized evidence

This establishes the identity of the subject substance. It requires that testimony be

- The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and

it

is offered in evidence. When nagging doubts persist on whether the item confiscated

photograph the same in the presence of:

is

the same specimen examined and established to be a prohibited drug, there can be

1)

the accused or the person/s from whom such items were confiscated and/or

no crime of illegal possession.

seized, or his/her representative or counsel,

2)

a representative from the media and the DOJ, and

o Procedure (People vs. Habana) 1) Police officer who seizes the suspected substance turns it over to a supervising officer who would send it by courier to the police crime laboratory for testing. The officer should place his marking on its plastic container and seal the same, preferably with adhesive tape. This will ensure that at the trial, he can identify the seized substance and the procedure he observed to preserve its integrity until it reaches the crime laboratory. If the substance is not in a plastic container, the officer should put it in one and seal the same.

2)

After the laboratory technician tests and verifies the nature of the substance in the container, he should put his own mark on the plastic container and seal it again with a new seal. At the trial, he can then describe the sealed condition of the

3) any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

- Where physical inventory and photograph is conducted:

1)

2)

Seizures covered by search warrants in the place where the search warrant was served Warrantless seizures (e.g., buy-bust operation) at the nearest police station or office of the apprehending officer/team, whichever is practicable; may also be conducted at the place where they were seized in keeping with the law’s intent of preserving their integrity and evidentiary value

- Marking” – the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the item/s seized. Marking should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation.

REPUBLIC ACT NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)

Penalty for marijuana (People vs. Lascano, citing People vs. Simon and People vs. De Lara)

For the arresting officers’ failure to adduce justifiable grounds, we are led to conclude from the totality of the procedural lapses committed in this case that the arresting officers deliberately

1)

750 grams or more reclusion perpetua

disregarded the legal safeguards under RA 9165. These lapses effectively produced

2)

500 grams to 749 grams reclusion temporal

serious doubts on the integrity and identity of the corpus delicti, especially in the

3)

250 grams to 499 grams prision mayor

face of allegations of frame-up.

4)

Below 250 grams prision correccional

Mere possession of a prohibited drug constitutes prima facie evidence of knowledge or

[The next few cases tackle the constitutionality of Sec. 36 of RA 9165 on authorized drug testing, specifically the following subsections:

animus possidendi sufficient to convict an accused in the absence of any satisfactory

(c)

random drug test of students of secondary and tertiary schools

explanation. Moreover, the finding of illicit drugs and paraphernalia in a house or

(d)

random drug test of officers and employees of public and private offices

building owned or occupied by a particular person raises the presumption of knowledge

(f)

mandatory drug test of persons charged before the prosecutor’s office with a criminal

and possession thereof which, standing alone, is sufficient to convict. (People vs. Lagman,

offense having an imposable penalty of imprisonment of not less than 6 years and 1 day

citing People vs. Torres)

(g)

mandatory drug test of candidates for public office whether appointed or elected]

Buy-bust Operation They are presumed to be regular operations UNLESS the accused can prove that they were not and that there was a frame-up (People vs Agustin, 215 SCRA 725.) Frame-up, also known as inducement, is easy to fabricate and must be disregarded UNLESS the evidence is clear and convincing. A sale happens when the transaction is consummated and may be on payment or delivery (People vs Ponsica, 230 SCRA 87.) What matters is that the accused was caught in the act (People vs. Aspiras, 376 SCRA 546.)

Mere acting as a broker is already sufficient to commit the crime of selling drugs (People vs. Agustin.)

People of the Phils. vs. Umipang (GR 190321) Minor deviations from the procedures under RA 9165 would not automatically exonerate an accused from the crimes of which he or she was convicted. This is especially true when the lapses in procedure were recognized and explained in terms of justifiable grounds. There must also be a showing that the police officers intended to comply with the procedure but were thwarted by some justifiable consideration/reason.

However, when there is gross disregard of the procedural safeguards prescribed in the substantive law, serious uncertainty is generated about the identity of the seized items that the prosecution presented in evidence. This uncertainty cannot be remedied by simply invoking the presumption of regularity in the performance of official duties, for a gross, systematic, or deliberate disregard of the procedural safeguards effectively produces an irregularity in the performance of official duties. As a result, the prosecution is deemed to have failed to fully establish the elements of the crimes charged, creating reasonable doubt on the criminal liability of the accused.

Pimentel vs. Comelec (GR 161658) Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution. Beyond these stated qualification requirements, candidates for senator need not possess any other qualification to run for senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a constitutional mandate, or alter or enlarge the Constitution.

Pimentels contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as, unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts with the Constitution. In the discharge of their defined functions, the three departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever limits it imposes must be observed.

SJS vs. DDB, PDEA (GR 157870) In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm.

The issue tendered as to the constitutionality of mandatory but random drug testing of students is one of first impression. The court thus deduced from US jurisprudence that: (1) schools and

REPUBLIC ACT NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)

their administrators stand in loco parentis with respect to their students; (2) minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco parentis, have a duty to safeguard the health and well-being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to impose conditions on applicants for admission that are fair, just, and non-discriminatory.

The Court is of the view and so holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.

With regard to the random drug test of officers and employees of public and private offices, taking into account the reduced expectation of privacy on the part of the employees, the compelling state concern likely to be met by the search, and the well-defined limits set forth in the law to properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement is, under the limited context of the case, reasonable and, ergo, constitutional.

Like their counterparts in the private sector, government officials and employees also labor under reasonable supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to promote a high standard of ethics in the public service. And if RA 9165 passes the norm of reasonableness for private employees, the more reason that it should pass the test for civil servants, who, by constitutional command, are required to be accountable at all times to the people and to serve them with utmost responsibility and efficiency.

Laserna v. DDB, PDEA (GR 158633) Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right against self-incrimination, and for being contrary to the due process and equal protection guarantees.

We find the situation entirely different in the case of persons charged before the public prosecutors office with criminal offenses punishable with 6 years and 1 day imprisonment. The operative concepts in the mandatory drug testing are randomness and suspicionless. In the case of persons charged with a crime before the prosecutors office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness and

being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not randomly picked; neither are they beyond suspicion.

When persons suspected of committing a crime are charged, they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being haled before the prosecutors office and peaceably submitting themselves to drug testing, if that be the case, do not necessarily consent to the procedure, let alone waive their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the stated objectives of RA 9165. Drug testing in this case would violate a persons right to privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

People vs. Fundales, Jr. (GR 184606) Section 86 of RA 9165 deals with inter-agency relations of the PNP and other law enforcement agencies with the PDEA. It is an administrative provision designating the PDEA as the lead agency in dangerous drugs cases. We have already ruled that nothing in RA 9165 suggests that it is the intention of the legislature to make an arrest in drugs cases illegal if made without the participation of the PDEA. In the implementing rules and regulations of RA 9165, Section 86(a) clearly states:

“(a) Relationship/Coordination between the PDEA and Other Agencies. – The PDEA shall be the lead agency in the enforcement of the Act, while the PNP, the NBI and other law enforcement agencies shall continue to conduct anti-drug operations in support of the PDEA xxx Provided, finally, that nothing in this IRR shall deprive the PNP, the NBI, other law enforcement personnel and the personnel of the Armed Forces of the Philippines (AFP) from effecting lawful arrests and seizures in consonance with the provisions of Section 5, Rule 113 of the Rules of Court.”

Suffice it to state that in this case, the danger of abuse that the provision seeks to prevent is not present. We therefore see no reason why the non-participation of the PDEA would render the arrest illegal and the evidence obtained therein inadmissible considering that the integrity and evidentiary value of the seized prohibited substances and dangerous drugs have been properly preserved.

Estipona vs. Lobrigo (GR 226679) FACTS:

Estipona is the accused in a criminal case for violation of Sec. 11, Art. II of RA 9165 (Possession of Dangerous Drugs). He filed a Motion to Allow the Accused to Enter into a Plea Bargaining Agreement, praying to withdraw his not guilty plea and, instead, to enter a plea of guilty for violation of Sec. 12, Art. II of RA 9165 (Possession of Equipment, Instrument, Apparatus and

REPUBLIC ACT NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)

Other Paraphernalia for Dangerous Drugs) with a penalty of rehabilitation in view of his being a first-time offender and the minimal quantity (0.084 g) of the drug seized in his possession. He argued that Sec. 23 of RA 9165 (Plea-Bargaining Provision) violates: (1) the intent of the law expressed in paragraph 3, Sec. 2 thereof; (2) the rule-making authority of the Supreme Court; and (3) the principle of separation of powers among the three equal branches of the government.

The prosecution moved for the denial of the motion. Respondent Judge Lobrigo issued an Order denying Estipona’s motion. Estipona filed a motion for reconsideration, but it was denied.

ISSUE:

WON Sec. 23 of RA 9165, which prohibits plea bargaining in all violations of the said law, is unconstitutional.

HELD:

(1) YES. The power to promulgate rules of pleading, practice and procedure is now the Supreme Court’s exclusive domain and no longer shared with the Executive and Legislative departments.

Carpio-Morales v Court of Appeals (Sixth Division) further elucidated:

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. xx xx

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 “[s]tronger and more independent judiciary."

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.