Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Chemical Diversion. The sale, distribution, supply or transport of legitimately imported, in- Dispense. Any act of giving away, selling or distributing medicine or any dangerous drug
transit, manufactured or procured controlled precursors and essential chemicals, in diluted, with or without the use of prescription.
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 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
RA 9165 || Apostol | Homeres | Plimaco Page 1 of 12
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 Cannabis or commonly known as Marijuana or Indian Hemp or by its any other
a sense of compulsion to take the substance and the difficulties in controlling substance - name. Embraces every kind, class, genus, or specie of the plant Cannabis sativa L. including,
taking behavior in terms of its onset, termination, or levels of use. 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,
Drug Syndicate. Any organized group of two (2) or more persons forming or joining flowering or fruiting tops, or any part or portion of the plant and seeds thereof, and all its
together with the intention of committing any offense prescribed under this Act. geographic varieties, whether as a reefer, resin, extract, tincture or in any form whatsoever.
Employee of Den, Dive or Resort. The caretaker, helper, watchman, lookout, and other Methylenedioxymethamphetamine (MDMA) or commonly known as Ecstasy, or
persons working in the den, dive or resort, employed by the maintainer, owner and/or operator by its any other name. Refers to the drug having such chemical composition, including
where any dangerous drug and/or controlled precursor and essential chemical is administered, any of its isomers or derivatives in any form.
delivered, distributed, sold or used, with or without compensation, in connection with the
operation thereof. Methamphetamine Hydrochloride or commonly known as Shabu, Ice, Meth,
or by its any other name. Refers to the drug having such chemical composition, including
Financier. Any person who pays for, raises or supplies money for, or underwrites any of the any of its isomers or derivatives in any form.
illegal activities prescribed under this Act.
Opium. Refers to the coagulated juice of the opium poppy (Papaver somniferum L.) and
Illegal Trafficking. The illegal cultivation, culture, delivery, administration, dispensation, embraces every kind, class and character of opium, whether crude or prepared; the ashes or
manufacture, sale, trading, transportation, distribution, importation, exportation and refuse of the same; narcotic preparations thereof or therefrom; morphine or any alkaloid of
possession of any dangerous drug and/or controlled precursor and essential chemical. 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
Instrument. Anything that is used in or intended to be used in any manner in the for use or not.
commission of illegal drug trafficking or related offenses.
Opium Poppy. Refers to any part of the plant of the species Papaver somniferum L., Papaver
Laboratory Equipment. The paraphernalia, apparatus, materials or appliances when used, setigerum DC, Papaver orientale, Papaver bracteatum and Papaver rhoeas, which includes the
intended for use or designed for use in the manufacture of any dangerous drug and/or seeds, straws, branches, leaves or any part thereof, or substances derived therefrom, even for
controlled precursor and essential chemical, such as reaction vessel, preparative/purifying floral, decorative and culinary purposes.
equipment, fermentors, separatory funnel, flask, heating mantle, gas generator, or their
substitute. PDEA. Refers to the Philippine Drug Enforcement Agency under Section 82, Article IX of this
Act.
Manufacture. The production, preparation, compounding or processing of any dangerous
drug and/or controlled precursor and essential chemical, either directly or indirectly or by Person. Any entity, natural or juridical, including among others, a corporation, partnership,
extraction from substances of natural origin, or independently by means of chemical synthesis trust or estate, joint stock company, association, syndicate, joint venture or other
or by a combination of extraction and chemical synthesis, and shall include any packaging or unincorporated organization or group capable of acquiring rights or entering into obligations.
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, Planting of Evidence. The willful act by any person of maliciously and surreptitiously
packaging or labeling of a drug or other substances by a duly authorized practitioner as an inserting, placing, adding or attaching directly or indirectly, through any overt or covert act,
incident to his/her administration or dispensation of such drug or substance in the course of whatever quantity of any dangerous drug and/or controlled precursor and essential chemical
his/her professional practice including research, teaching and chemical analysis of dangerous in the person, house, effects or in the immediate vicinity of an innocent individual for the
drugs or such substances that are not intended for sale or for any other purpose. purpose of implicating, incriminating or imputing the commission of any violation of this Act.
4) Promulgation of sentence for first-time minor offender There are 2 additional details from People vs. Pendatun, 434 SCRA 148:
- If accused violates any of the conditions of his/her suspended sentence and a) The accused sold and delivered the drug to another person
the applicable rules and regulations of the Board, the court shall pronounce b) He knew that he sold and delivered a dangerous drug
judgment of conviction and he/she shall then serve sentence.
Kinds of Possession
5) Probation or community service for a first-time minor offender in lieu of Actual and constructive possession. Constructive possession happens when the
imprisonment (Sec. 70) drug is under the control of the accused or if he has the right to exercise dominion and
a) Probation control over the place where the drugs are. Constructive possession can be exclusive as
- The accused may be placed under probation even if the sentence provided is well as joint. (People vs. Huang, 439 SCRA 350) People vs. Tira (430 SCRA 134) gives us
higher than that provided under existing laws on probation, or render community 2 sets of elements for actual possession:
service in lieu of imprisonment. Illegal drugs:
- Supervision and rehabilitative surveillance shall be undertaken by the Board a) Actual possession of an illegal drug
through the DOH in coordination with the Board of Pardons and Parole and the b) Possession is not authorized by law
Probation Administration. c) Accused freely and consciously possessed the drug
- Upon compliance with the conditions of the probation, the Board shall submit a
written report to the court recommending termination of probation and final Controlled precursors and essential chemicals/regulated drugs:
discharge of the probationer, whereupon the court shall issue such an order. 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
b) Community service a doctor's prescription)
- Shall apply only to violators of Sec. 15. c) He knows that the drug is regulated
RA 9165 || Apostol | Homeres | Plimaco Page 8 of 12
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 plastic container when it was handed to him and testify on the procedure he took
corpus delicti, the body of the crime. (People v. Coreche) It must be shown that the 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) 3) If sealing has not been made, prosecution would have to present every police
officer, messenger, laboratory technician, and storage personnel, the
Possession vs. Sale entire chain of custody, no matter how briefly ones possession has been, in order
Possession and sale are different crimes. When a person is arrested while selling drugs, to testify that the substance has not been tampered with or substituted while in
the possession of the drugs he has are absorbed into the sale. Hence, the only crime his care.
committed is sale (People vs. Catan, 205 SCRA 235.) The EXCEPTION is if the accused sold
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
accuseds arrest illegal or make the items seized inadmissible. What is imperative
Receipt of Payment 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 items as the same would be utilized in the determination of the guilt or
buyer agrees to buy. This is also considered in RA 9165. There is already a sale when innocence of the accused.
the buyer agrees to buy and the seller agrees to sell. Consequently, payment of the - The prosecution must recognize and explain the lapse or lapses in the prescribed
money for a buy-bust operation isn't necessary anymore (People vs Yang, 423 SCRA 82.) procedures and must likewise demonstrate that the integrity and evidentiary value
In fact, even if the "buyer" did not have the money, there is already a sale if he agreed to of the evidence seized have been preserved.
buy (People vs. Macasa 229 SCRA 422.)
o Physical inventory and photograph requirement under Sec. 21 of the IRR
Chain of custody in drugs cases vis--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
presented about every link in the chain, from the moment the item is seized up to the time 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) 3) any elected public official who shall be required to sign the copies of the
1) Police officer who seizes the suspected substance turns it over to a supervising inventory and be given a copy thereof.
officer who would send it by courier to the police crime laboratory for testing. - Where physical inventory and photograph is conducted:
The officer should place his marking on its plastic container and seal the same, 1) Seizures covered by search warrants in the place where the search
preferably with adhesive tape. This will ensure that at the trial, he can identify the warrant was served
seized substance and the procedure he observed to preserve its integrity until it 2) Warrantless seizures (e.g., buy-bust operation) at the nearest police
reaches the crime laboratory. station or office of the apprehending officer/team, whichever is practicable;
If the substance is not in a plastic container, the officer should put it in one and may also be conducted at the place where they were seized in keeping with
seal the same. the laws intent of preserving their integrity and evidentiary value
2) After the laboratory technician tests and verifies the nature of the substance in the - Marking the placing by the apprehending officer or the poseur-buyer of
container, he should put his own mark on the plastic container and seal it again his/her initials and signature on the item/s seized. Marking should be done (1)
with a new seal. At the trial, he can then describe the sealed condition of the in the presence of the apprehended violator (2) immediately upon
confiscation.
RA 9165 || Apostol | Homeres | Plimaco Page 9 of 12
REPUBLIC ACT NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)
Penalty for marijuana (People vs. Lascano, citing People vs. Simon and People For the arresting officers failure to adduce justifiable grounds, we are led to conclude from the
vs. De Lara) 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
[The next few cases tackle the constitutionality of Sec. 36 of RA 9165 on authorized drug
Mere possession of a prohibited drug constitutes prima facie evidence of knowledge or 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 prosecutors 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]
People of the Phils. vs. Umipang (GR 190321) Pimentels contention is well-taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is
Minor deviations from the procedures under RA 9165 would not automatically exonerate an hereby declared as, unconstitutional. It is basic that if a law or an administrative rule
accused from the crimes of which he or she was convicted. This is especially true when the violates any norm of the Constitution, that issuance is null and void and has no effect. The
lapses in procedure were recognized and explained in terms of justifiable grounds. There must Constitution is the basic law to which all laws must conform; no act shall be valid if it conflicts
also be a showing that the police officers intended to comply with the procedure but were with the Constitution. In the discharge of their defined functions, the three departments of
thwarted by some justifiable consideration/reason. government have no choice but to yield obedience to the commands of the Constitution.
Whatever limits it imposes must be observed.
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 SJS vs. DDB, PDEA (GR 157870)
that the prosecution presented in evidence. This uncertainty cannot be remedied by simply In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered
invoking the presumption of regularity in the performance of official duties, for a gross, political party, seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug
systematic, or deliberate disregard of the procedural safeguards effectively produces an Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA
irregularity in the performance of official duties. As a result, the prosecution is deemed to have 9165 on the ground that they are constitutionally infirm.
failed to fully establish the elements of the crimes charged, creating reasonable
doubt on the criminal liability of the accused. 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
RA 9165 || Apostol | Homeres | Plimaco Page 10 of 12
REPUBLIC ACT NO. 9165 (COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002)
their administrators stand in loco parentis with respect to their students; (2) minor students being suspicionless are antithetical to their being made defendants in a criminal complaint.
have contextually fewer rights than an adult, and are subject to the custody and supervision They are not randomly picked; neither are they beyond suspicion.
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 When persons suspected of committing a crime are charged, they are singled out and are
reasonably be necessary to discharge such duty; and (4) schools have the right to impose impleaded against their will. The persons thus charged, by the bare fact of being haled before
conditions on applicants for admission that are fair, just, and non-discriminatory. 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
The Court is of the view and so holds that the provisions of RA 9165 requiring impose mandatory drug testing on the accused is a blatant attempt to harness a
mandatory, random, and suspicionless drug testing of students are constitutional. medical test as a tool for criminal prosecution, contrary to the stated objectives of
Indeed, it is within the prerogative of educational institutions to require, as a condition for RA 9165. Drug testing in this case would violate a persons right to privacy
admission, compliance with reasonable school rules and regulations and policies. To be sure, guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused persons
the right to enroll is not absolute; it is subject to fair, reasonable, and equitable are veritably forced to incriminate themselves.
requirements.
People vs. Fundales, Jr. (GR 184606)
With regard to the random drug test of officers and employees of public and private offices, Section 86 of RA 9165 deals with inter-agency relations of the PNP and other law enforcement
taking into account the reduced expectation of privacy on the part of the employees, the agencies with the PDEA. It is an administrative provision designating the PDEA as the lead
compelling state concern likely to be met by the search, and the well-defined limits set forth in agency in dangerous drugs cases. We have already ruled that nothing in RA 9165 suggests
the law to properly guide authorities in the conduct of the random testing, we hold that the that it is the intention of the legislature to make an arrest in drugs cases illegal if
challenged drug test requirement is, under the limited context of the case, made without the participation of the PDEA. In the implementing rules and regulations
reasonable and, ergo, constitutional. of RA 9165, Section 86(a) clearly states:
Like their counterparts in the private sector, government officials and employees also (a) Relationship/Coordination between the PDEA and Other Agencies. The PDEA shall be
labor under reasonable supervision and restrictions imposed by the Civil Service the lead agency in the enforcement of the Act, while the PNP, the NBI and other law
law and other laws on public officers, all enacted to promote a high standard of enforcement agencies shall continue to conduct anti-drug operations in support of the PDEA
ethics in the public service. And if RA 9165 passes the norm of reasonableness for xxx Provided, finally, that nothing in this IRR shall deprive the PNP, the NBI, other law
private employees, the more reason that it should pass the test for civil servants, enforcement personnel and the personnel of the Armed Forces of the Philippines
who, by constitutional command, are required to be accountable at all times to the (AFP) from effecting lawful arrests and seizures in consonance with the provisions of
people and to serve them with utmost responsibility and efficiency. Section 5, Rule 113 of the Rules of Court.
Laserna v. DDB, PDEA (GR 158633) Suffice it to state that in this case, the danger of abuse that the provision seeks to prevent is
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for not present. We therefore see no reason why the non-participation of the PDEA would render
Certiorari and Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck the arrest illegal and the evidence obtained therein inadmissible considering that the integrity
down as unconstitutional for infringing on the constitutional right to privacy, the right against and evidentiary value of the seized prohibited substances and dangerous drugs have been
unreasonable search and seizure, and the right against self-incrimination, and for being properly preserved.
contrary to the due process and equal protection guarantees.
Estipona vs. Lobrigo (GR 226679)
We find the situation entirely different in the case of persons charged before the public FACTS:
prosecutors office with criminal offenses punishable with 6 years and 1 day imprisonment. Estipona is the accused in a criminal case for violation of Sec. 11, Art. II of RA 9165 (Possession
The operative concepts in the mandatory drug testing are randomness and of Dangerous Drugs). He filed a Motion to Allow the Accused to Enter into a Plea Bargaining
suspicionless. In the case of persons charged with a crime before the prosecutors office, a Agreement, praying to withdraw his not guilty plea and, instead, to enter a plea of guilty for
mandatory drug testing can never be random or suspicionless. The ideas of randomness and violation of Sec. 12, Art. II of RA 9165 (Possession of Equipment, Instrument, Apparatus and
RA 9165 || Apostol | Homeres | Plimaco Page 11 of 12
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 Estiponas 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 Courts exclusive domain and no longer shared with the Executive and Legislative
departments.
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.
RA 9165 || Apostol | Homeres | Plimaco Page 12 of 12