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Reyes, Aileen Love H.

SPL 2D
Module 5
DANGEROUS DRUGS ACT

1. In general, what are the acts which are punishable under the DDA?
Under RA 9165, the importation, delivery and sale of dangerous drugs are generally punished, which is
often aggravated by the use of diplomatic passports, or as a financer. In reference to the actual sale of such
drugs, the maintenance and those employees and buyers of the dangerous drugs in Dens, Dives or Resort
shall also be punished. Manufacturing and cultivation of plants used for dangerous drugs are also
specifically punished. In terms of usage, the mere possession of both the drugs and equipment used in
producing such, the actual usage are punished as well. The following is the complete list of that which is
punishable:
a. Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals
b. Sale, Trading, Administration, Dispensation, Delivery, Distribution, and Transportation of
Dangerous Drugs and/or Controlled Precursors and Essential Chemicals
c. Maintenance of a Den, Dive or Resort
d. Employees and Visitors of a Den, Dive or Resort
e. Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals
f. Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals.
g. Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other Paraphernalia for
Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.
h. Possession of Dangerous Drugs
i. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs.
j. Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings.
k. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs
During Parties, Social Gatherings or Meetings.
l. Use of Dangerous Drugs
m. Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources Thereof.
n. Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals.
o. Unnecessary Prescription of Dangerous Drugs.
p. Unlawful Prescription of Dangerous Drugs

- What are the elements of illegal possession of regulated drugs? Differentiate “actual possession”
and “constructive possession”?
As stated in People v. Lagman, the following are the essential elements of the crime of illegal possession
of regulated drugs:
o The actual possession of an item or object which is identified to be a prohibited drug;
 Actual possession – exists when the drug is with the immediate and physical
possession or control of the accused
 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.
o Such possession is not authorized by law; and
o The accused freely or consciously possessed the said drug.

- In the case of People of the Philippines vs. Boisan Cabugatan y Macarambon (G.R. No. 172019, 12
February 2007):
o What were the elements of a violation of Section 5 of the DDA?
 The identity of the buyer and seller, object and consideration; and
 The delivery of the thing sold and the payment therefore.
o How did the Supreme Court deny the contention of the accused that he was a mere victim
of frame-up and extortion from the police officers?
The Supreme Court views the defense of frame-up with disfavor as it can easily be
concocted and is commonly used as a standard line of defense in most prosecutions arising
from illegal sale of drugs. For it to prosper, the defense must present clear and convincing

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evidence to overcome the presumption that the arresting policemen performed their duties
in a regular and proper manner.
In this case, the appellant was unable to substantiate his claim. He was unable to identify
anyone of the members of the buy-bust team which apprehended him. There was no motive
for them to frame him up. Absent any proof of motive to falsely accuse him of a grave offense,
the presumption of regularity in the performance of official duty and the findings of the trial
court with respect to the credibility of witnesses shall prevail over the appellant’s bare
allegation that he was framed-up.

2. Can an accused be simultaneously charged with “use” per Section 15 and “possession” per Section 11 of
R.A. 9165? How about use per Section 15 and the sale per Section 5 of the DDA? What is the difference
between these applications?
- Under Sec. 15 and Sec. 11:
o No. The appellant who is found to have possession of such quantity of drugs under Sec. 11
cannot be simultaneously and separately charged with “use” under Sec. 15. This is because it
is clear from the said provisions that Sec. 11 shall apply.
o Illegal possession of dangerous drugs absorbs the use of dangerous drugs.
- Under Sec. 15 and Sec. 5:
o Yes. The only provision that is absorbed under Sec. 15 is Sec. 11. As it is a clear provision in the
law, sale under Sec. 5, the mere act of distributing the prohibited drugs to other is in itself a
punishable offense.
o When the seller is apprehended, the quantity he is possessing must be equal to that being
sold by him. If so, it will be illegal sale only, possession being absorbed by sale. But if the
quantity possessed by him is greater than the quantity negotiated, he is still liable for illegal
possession equal to the excess amount.
- These two provisions are isolated acts punishable, each of them in themselves. The difference between
these two applications are:
o For use (Sec. 11), if one who is found in the possession of the prohibited drugs also tested
positive for use shall be held liable, regardless of the quantity in his possession, he shall be
held liable under Sec. 11, not Sec. 15, since there is no cut-off quantity between Sec. 11 and
15.
o For sale (Sec. 5), regardless of the quantity and purity found in his possession, the appellant
will always be sentenced to life imprisonment to death and a fine of P500,000 to P10 million.

3. Is an accused in a case for DDA entitled to avail of the remedy of pleading guilty to a lesser offense (Plea-
Bargaining)?
No. Under Sec. 23 of the the DDA, any person charged under any provision of this Act regardless of the
imposable penalty shall not be allowed to avail of the provision on plea-bargaining. However, this Section
was already declared unconstitutional by the Supreme Court in the case of Estipona v Lobrigo.

- In the case of Salvador Estipona, Jr. y Asuela vs. Hon. Frank E. Lobrigo and People of the Philippines
(G.R. No. 226679, 15 August 2017), how did the Supreme Court address the following issues:
o Whether the option to avail of plea-bargaining is a substantive right or a procedural right or
remedy –
According to the case, plea bargaining is a rule of procedure. It has been defined as “a
process whereby the accused and the prosecution work out a mutually satisfactory disposition
of the case subject to court approval. However, since it is of mutuality of advantage, the rules
on plea-bargaining neither create a right nor take away a vested right. It merely operates as a
means to implement an existing right by regulating the judicial process for enforcing rights
and duties recognized by substantive law and for justly administering remedy and redress for
a disregard or infraction of them.
There is no constitutional right to plea bargain. No basic rights are infringed by trying him
rather than accepting a plea of guilty, the prosecutor need not do so if he prefers to go to trial.
Under the present rules, the acceptance of an offer to plead guilty is not a demandable right
but depends on the consent of the offended party and the prosecutor, which is a condition
precedent to a valid plea of guilty to a lesser offense that is necessarily included in the offense
charged.
o Whether Section 23 of the DDA is violative of the right to equal protection –
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.
The Court chose to declare Sec. 23 of RA 9165 UNCONSTITUTIONAL for being contrary to
the rule-making authority of the Supreme Court under Sec. 5(5), Art. VIII of the 1987
Constitution.

- Harmonize the guidelines for plea-bargaining in cases involving violations of the DDA provided by
the DOJ and the Supreme Court, specifically, on the following provisions of the DDA:
Section 11 If the accused is charged with possession of shabu, opium, morphine, heroin, and
cocaine of more than five grams but not exceeding 10 grams, or with marijuana of
300 grams but not more than 500 grams (Section 11), the accused can enter into a
plea bargain to violation of Section 11 (less than five grams in case of shabu, etc.
and less than 300 grams of marijuana) to lower the penalty from 20 years to life
imprisonment and fine ranging from P400,000 to P500,000, to 12 years and one day
to 20 years prison term and fine ranging from P300,000 to P400,000.
Section 12 If an accused is charged with possession of equipment, apparatus and other
paraphernalia for dangerous drugs under Section 12, he or she can plea bargain to
violation of Section 15 or use of dangerous drugs to lessen the penalty from six
months and one day to four years in prison and fine from P10,000 to P50,000, to
six months treatment and rehabilitation if he or she admits drug use or is found
positive after drug use/dependency test.
Section 5 No plea bargaining for the sale, trading, administration, dispensation, delivery,
distribution and transportation of all kinds of dangerous drugs.

4. What is a buy-bust operation? Identify the “complete picture” of the drug transaction or the material
details of a buy-bust operation that the prosecution must present in drugs cases.
A buy bust operation is a form of entrapment which has repeatedly been accepted as a valid form
of arresting violators of dangerous drugs law. In a buy bus operation the violator is caught flagrante delicto
and the police officers conduction the operation are not only authorized but duty-bound to apprehend the
violator and to search him for anything that may have been part of or used in the commission of the crime.
It is the duty of the prosecution to present a complete picture detailing the buy bust operation:
o From the initial contact between the poseur-buyer and the pusher;
o The offer of purchase;
o The promise or payment of the consideration until the consummation of the sale by delivery
of the illegal drug subject of sale.

5. What is “chain of custody”? Outline the procedures/ guidelines that must be observed in ensuring the
chain of custody of seized drugs per Section 21 of R.A. 9165 and its IRR. Will non-compliance of these
guidelines render the seizure void? Why or why not?
Chain of Custody (CDC) is a process essential to preserving the integrity of the of the evidence of corpus
delicti. To prove the existence of the corpus delicti in drug cases, the prosecution must establish the identity
and the integrity of the dangerous drugs itself were preserved. The identity of the confiscated is preserved
when the drugs presented as evidence in court is the exact same item that was seized or confiscated from
the accused at the time of his arrest. The preservation of the drugs identity means that its evidentiary value
is intact as it was not subject to planting, switching, tampering, or any other circumstance that casts doubt
to its existence.

Under Section 21, the following procedure must be observed in ensuring the chain of custody:
a. The apprehending team shall immediately after seizure and confiscation conduct a physical inventory
of the seized items and photograph the same in the presence of the accused or the person from whom
the items were seized, or his representative or counsel and a representative of the National Protection
Service or the media who shall be required to sign the copies of the inventory and be given a copy
thereof.
o Physical inventory must be conducted at the place where the search warrant is served
o In case of warrantless seizures, the nearest police station or at the nearest office of the
apprehending team whichever is practicable;
b. Within 24 hours upon confiscation/seizure of dangerous drugs, the seized items shall be submitted to
the PDEA Forensic Laboratory for a qualitative and quantitative examination;
c. A certification of the forensic laboratory examination results, which shall be done under oath by the
forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the
subject item/s.
o When the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled
precursors and essential chemicals does not allow the completion of testing within the time
frame, a partial laboratory examination report shall be provisionally issued stating therein the
quantities of dangerous drugs still to be examined by the forensic laboratory;
o That a final certification shall be issued on the completed forensic laboratory examination on
the same within the next twenty-four (24) hours

Noncompliance of the following requirements under justifiable grounds shall not render the seizures and
custody void and invalid as long as the integrity and the evidentiary value of the seized items are properly
preserved.

- In the case of People of the Philippines vs. Ramil Doria Dahil and Rommel Castro y Carlos (G.R. No.
212196, 12 January 2015), what were the important “links” in the Chain of Custody of Dangerous
Drugs identified by the Supreme Court that the prosecution has the burden to prove? In the case of
People of the Philippines vs. Romy Lim y Miranda (G.R. No. 231989, 4 September 2018), how was this
further clarified by the Supreme Court?
The Court identified the links that the prosecution must establish in the chain of custody in a buy-
bust situation to be as follows: first, the seizure and marking, if practicable, of the illegal drug recovered
from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the
apprehending officer to the investigating officer; third, the turnover by the investigating officer of the
illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and
submission of the marked illegal drug seized by the forensic chemist to the court (People v Doria)
Section 21(1)'s requirements are designed to make the first and second links foolproof. Conducting
the inventory and photographing immediately after seizure, exactly where the seizure was done (or at
a location as practicably close to it) minimizes, if not eliminates, room for adulteration or the planting
of evidence. The presence of the accused (or a representative) and of third-party witnesses, coupled
with their attestations on the written inventory, ensures that the items delivered to the investigating
officer are the items which have actually been inventoried (People v Lim y Miranda)

- In the case of People of the Philippines vs. Edwin Partoza y Evora (G.R. No. 182418, 8 May 2009),
what was the crucial error of the arresting officers that made the Supreme Court overturn the finding
of conviction by the lower court?
PO3 Tougan did not mark the seized drugs immediately after he arrested appellant in the latter's
presence. Neither did he make an inventory and take a photograph of the confiscated items in the
presence of appellant. There was no representative from the media and the Department of Justice, or
any elected public official who participated in the operation and who were supposed to sign an
inventory of seized items and be given copies thereof.
Furthermore, while PO3 Tougan admitted to have in his possession the shabu from the time
appellant was apprehended at the crime scene to the police station, records are bereft of proof on how
the seized items were handled from the time they left the hands of PO3 Tougan. PO3 Tougan
mentioned a certain Inspector Manahan as the one who signed the request for laboratory examination.
He did not however relate to whom the custody of the drugs was turned over. Furthermore, the
evidence of the prosecution did not reveal the identity of the person who had the custody and
safekeeping of the drugs after its examination and pending presentation in court. The failure of the
prosecution to establish the chain of custody is fatal to its cause.
All told, the identity of the corpus delicti in this case was not proven beyond reasonable doubt.

- In the case of People of the Philippines vs. Sonny Padua y Reyes, what was the ruling of the Supreme
Court relative the prosecution’s failure to present the following witnesses: [i] the investigating
officer; [ii] the Forensic Chemist; and, [iii] the supposed Informant? However, in the case of People
of the Philippines vs. Fernando Habana y Orante (G.R. No. 188900, 5 March 2010), what was the
crucial factor identified by the Supreme Court that impacted the non-presentation of several
witnesses?
The non-presentation as witnesses of other persons such as the investigator and the forensic
chemist, is not a crucial point against the prosecution. The matter of presentation of witnesses by the
prosecution is not for the court to decide. The prosecution has the discretion as to how to present its
case and it has the right to choose whom it wishes to present as witnesses.
Anent the failure of the prosecution to present the testimony of the informant, it is well-settled
that the testimony of an informant in drug-pushing cases is not essential for conviction and may be
dispensed if the poseur-buyer testified on the same. Informants are almost always never presented in
court because of the need to preserve their invaluable service to the police.
However, in People v Habana, it was held that if the sealing of the seized substance has not been
made, the 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.
Each of them has to testify that the substance, although unsealed, has not been tampered with or
substituted while in his care.

- In the case of People of the Philippines vs. Roselle Santiago y Pabalinas (G.R. No. 191061, 9 February
2011), what procedural lapse did the Supreme Court find that made them overturn the finding of
conviction by the lower court?
Esguerra testified that he seized a heat-sealed sachet of white substance from Roselle and marked
the sachet with "RPS" right in her presence. He claimed that he then immediately submitted the
specimen to the police crime laboratory for examination. But the request for laboratory exam reveals
that it was not Esguerra who delivered the specimen to the crime laboratory. It appears that Esguerra
gave it to a certain SPO3 Puno who in turn forwarded it to a certain PO2 Santos. No testimony covers
the movement of the specimen among these other persons. Consequently, the prosecution was unable
to establish the chain of custody of the seized item and its preservation from possible tampering.

- In the case of People of the Philippines vs. Alex Watamama y Esil (G.R. No. 194945, 30 July 2012), in
complying with its burden to prove compliance with the Chain of Custody doctrine, is it absolutely
necessary for the prosecution to present before the court each and every link of the said chain?
The court recognizes substantial adherence and not perfect adherence but such officers must
present justifiable reason for their imperfect conduct and show that the integrity and evidentiary value
of the seized items had been preserved. The chain of custody rule requires that testimony be presented
about every link in the chain, from the moment the item was seized up to the time it is offered in
evidence. To this end, the prosecution must ensure that the substance presented in court is the same
substance seized from the accused.
As a mode of authenticating evidence, the chain of custody rule requires that the admission of an
exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the
proponent claims it to be. In context, this would ideally include testimony about every link in the chain,
from the seizure of the prohibited drug up to the time it is offered into evidence, in such a way that
everyone who touched the exhibit would describe how and from whom it was received, where it was
and what happened to it while in the witness' possession, the condition in which it was received, and
the condition in which it was delivered to the next link in the chain.

- In the case of People of the Philippines vs. Emmanuel Oliva y Jordil, et al. (G.R. No. 234156, 7 January
2019), is the presence of a representative from the Media or the DOJ during the inventory absolutely
necessary in the prosecution of a case for a violation of the DDA?
Yes. It has the positive duty to demonstrate observance thereto in such a way that, during the
proceedings before the trial court, it must initiate in acknowledging and justifying any perceived
deviations from the requirements of the law. Its failure to follow the mandated procedure must be
adequately explained and must be proven as a fact in accordance with the rules on evidence. The rules
require that the apprehending officers do not simply mention a justifiable ground, but also clearly state
this ground in their sworn affidavit, coupled with a statement on the steps they took to preserve the
integrity of the seized item. A stricter adherence to Section 21 is required where the quantity of illegal
drugs seized is miniscule since it is highly susceptible to planting, tampering, or alteration.

6. Who may be granted immunity from prosecution in relation to R.A. 9165? What conditions must concur
to be able to avail of the immunity?
The offender who  Employees and visitors of den, dive, resort (Sec. 7)
gives information  Possession of dangerous drugs (Sec. 11)
must be a violator of  Possession of paraphernalia (Sec. 12)
the following  Possession of paraphernalia during party, social gathering or meeting
sections:  Use of Dangerous drugs (Sec. 15)
 Unlawful Prescription (Sec. 19)

He must give  Importation (Sec. 4)


information against  Sale, Administration, etc (Sec. 5)
violators of the  Maintenance of den, dive (Sec. 6)
following sections:  Manufacture of dangerous drugs (Sec. 8)
 Manufacture of paraphernalia (Sec. 10)
 Possession of dangerous drugs during parties, social gathering,
meetings (Sec. 13)
 Cultivation of dangerous drugs or sources (Sec. 16)

He must meeting the  He willingly testifies against such persons


following criteria:  He does not appear as most guilty
 There is no direct evidence available except for the information and
testimony (IT), and
 The following conditions are present:
- The IT are necessary for conviction
- Such IT are not yet in the possession of the State
- Such IT can be corroborated on its material points
- The informant/witness has not been convicted of crime of moral
turpitude, except when no direct evidence is available
- He shall strictly and faithfully comply without delay any condition
or undertaking in writing lawfully imposed by the State as further
consideration for the grant of immunity from prosecution and
punishment
7. On Mandatory Drug Testing. - In the case of Social Justice Society vs. Dangerous Drugs Board and PDEA
(G.R. No. 157780, 3 November 2008), what parts of Section 36 of the DDA were declared unconstitutional,
and which ones were constitutional, by the Supreme Court? How did the Supreme Court justify its
pronouncements?

- For Sec. 36 paragraphs (f), (g) of RA 9165, the Supreme Court declared the provisions unconstitutional
o Paragraph F: For persons accused of crimes: In the case of persons charged with a crime before
the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The
ideas of randomness and being suspicionless are antithetical to their being made defendants
in a criminal complaint. They are not randomly picked; neither are they beyond suspicion.
When persons suspected of committing a crime are charged, they are singled out and are
impleaded against their will. The persons thus charged, by the bare fact of being haled before
the prosecutor's oce 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.
o Paragraph G: For all candidates for public office whether appointed or elected both in the
national or local government: The COMELEC cannot, in the guise of enforcing and
administering election laws or promulgating rules and regulations to implement Sec. 36 (g),
validly impose qualifications on candidates for senator in addition to what the Constitution
prescribes. If Congress cannot require a candidate for senator to meet such additional
qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the
democratic process of election should not be defeated by unwarranted impositions of
requirement not otherwise specified in the Constitution.
o Sec. 36 (g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution,
effectively enlarges the qualification requirements enumerated in the Sec. 3, Art. VI of the
Constitution. As couched, said Sec. 36 (g) unmistakably requires a candidate for senator to be
certified illegal-drug clean, obviously as a pre-condition to the validity of a certificate of
candidacy for senator or, with like effect, a condition sine qua non to be voted upon and, if
proper, be proclaimed as senator-elect.

- For Sec. 36 paragraphs (c), (d) of RA 9165


o Paragraph C: For secondary and tertiary level students: Guided by Vernonia and Board of
Education, the Court is of the view and so holds that the provisions of RA 9165 requiring
mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it
is within the prerogative of educational institutions to require, as a condition for admission,
compliance with reasonable school rules and regulations and policies. To be sure, the right to
enroll is not absolute; it is subject to fair, reasonable, and equitable requirements.
o Paragraph D: For officers and employees of public and private offices: Justifiable. The first
factor to consider in the matter of reasonableness is the nature of the privacy interest upon
which the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the
analysis of the privacy expectation of the employees and the reasonableness of drug testing
requirement. The employees' privacy interest in an office is to a large extent circumscribed by
the company's work policies, the collective bargaining agreement, if any, entered into by
management and the bargaining unit, and the inherent right of the employer to maintain
discipline and efficiency in the workplace. Their privacy expectation in a regulated office
environment is, in fine, reduced; and a degree of impingement upon such privacy has been
upheld.