INDETERMINATE SENTENCE LAW

(Act No. 4103 as amended by Act No. 4225)

WHEN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA, HE IS NOT

ENTITLED TO THE APPLICATION OF THE INDETERMINATE SENTENCE LAW
Accused-appellant cannot avail of the benefits of the Indeterminate Sentence
Law because Indeterminate Sentence Law does not apply to persons
convicted of offenses punishable with reclusion perpetua.
(People v. Aquino; GR 125906, Jan. 16, 98)

APPLICATION OF INDETERMINATE SENTENCE LAW EXPLAINED

In the case of People vs. Gabres, the Court has had occasion to so state that

"Under the Indeterminate Sentence Law, the maximum term of the penalty
shall be 'that which, in view of the attending circumstances, could be
properly imposed' under the Revised Penal Code, and the minimum shall be
within the range of the penalty next lower to that prescribed' for the offense.
The penalty next lower should be based on the penalty prescribed by the
Code for the offense, without first considering any modifying circumstance
attendant to the commission of the crime. The determination of the
minimum penalty is left by law to the sound discretion of the court and it can
be anywhere within the range of the penalty next lower without any
reference to the periods into which it might be subdivided. The modifying
circumstances are considered only in the imposition of the maximum term of
the indeterminate sentence.
"The fact that the amounts involved in the instant case exceed P22,000.00
should not be considered in the initial determination of the indeterminate
penalty; instead, the matter should be so taken as analogous to modifying
circumstances in the imposition of the maximum term of the full
indeterminate sentence. This interpretation of the law accords with the rule
that penal laws should be construed in favor of the accused. Since the
penalty prescribed by law for the estafa charge against accused-appellant is
prision correccional maximum to prision mayor minimum, the penalty next
lower would then be prision correccional minimum to medium. Thus, the

minimum term of the indeterminate sentence should be anywhere within six

(6) months and one (1) day to four (4) years and two (2) months . . ."
(People v. Saley; GR 121179, July 2, 98)

INDETERMINATE SENTENCE LAW; APPLICABLE ALSO IN DRUG CASES:

The final query is whether or not the Indeterminate Sentence Law is
applicable to the case now before us. Apparently it does, since drug offenses
are not included in nor has appellant committed any act which would put him
within the exceptions to said law and the penalty to be imposed does not
involve reclusion perpetua or death, provided, of course, that the penalty as
ultimately resolved will exceed one year of imprisonment. The more
important aspect, however, is how the indeterminate sentence shall be
ascertained. It is true that Section 1 of said law, after providing for
indeterminate sentence for an offense under the Revised Penal Code, states
that "if the offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which shall not
exceed the maximum fixed by said law and the minimum shall not be less
than the minimum term prescribed by the same" We hold that this quoted
portion of the section indubitably refers to an offense under a special law
wherein the penalty imposed was not taken from and is without reference to
the Revised Penal Code, as discussed in the preceding illustrations, such that
it may be said that the "offense is punished" under that law. There can be no
sensible debate that the aforequoted rule on indeterminate sentence for
offenses under special laws was necessary because of the nature of the
former type of penalties under said laws which were not included or
contemplated in the scale of penalties in Article 71 of the Code, hence there
could be no minimum "within the range of the penalty next lower to that
prescribed by the Code for the offense," as is the rule for felonies therein. In
the illustrative examples of penalties in special laws hereinbefore provided,
this rule applied, and would still apply, only to the first and last examples.
Furthermore, considering the vintage of Act No. 4103 as earlier noted, this
holding is but an application and is justified under the rule of contemporanea
expositio. Republic Act No. 6425, as now amended by Republic Act No. 7659,
has unqualifiedly adopted the penalties under the Revised Penal Code in
their technical terms, hence with their technical signification and effects. In
fact, for purposes of determining the maximum of said sentence, we have
applied the provisions of the amended Section 20 of said law to arrive at

prision correccional and Article 64 of the Code to impose the same in the
medium period. Such offense, although provided for in a special law, is now
in the effect punished by and under the Revised Penal Code.
(People v Martin Simon)
WHEN THE BENEFITS OF INDETERMINATE SENTENCE LAW IS NOT
APPLICABLE;
a. Offenses punished by death or life imprisonment.
b. Those convicted of treason (Art. 114), conspiracy or proposal to commit
treason (Art. 115).
c. Those convicted of misprision of treason (Art. 116), rebellion (Art. 134),
sedition (Art. 139), or espionage
(Art. 117).
d. Those convicted of piracy (Art. 122).
e. Habitual delinquents (Art. 62, par. 5).
f. Those who escaped from confinement or those who evaded sentence.
g. Those granted conditional pardon and who violated the terms of the same
(Art. 159). (People v. Corral, 74
Phil. 359).
h. Those whose maximum period of imprisonment does not exceed one year.
i. Those who are already serving final judgment upon the approval of the
Indeterminate Sentence Law.
j. those offenses or crimes not punishable by imprisonment such as distierro
and suspension.

RECIDIVISTS ARE ENTITLED TO THE BENEFITS OF THE INDETERMINATE

SENTENCE
Recidivists are entitled to an indeterminate sentence. (People v. Jaramilla, L28547, Feb. 22, 1974). Offender is not disqualified to avail of the benefits of
the law even if the crime is committed while he is on parole. (People v.
Clareon, CA 78 O.G. 6701, Nov. 19, 1982). (Bacar v. De Guzman)

NATURE OF PENALTY OF RECLUSION PERPETUA

In "People -vs- Conrado Lucas, 240 SCRA 66, the Supreme Court declared
that despite the amendment of Article 27 of the Revised Penal Code,

reclusion perpetua remained an indivisible penalty. Hence, the penalty does

not have any minimum, medium and maximum period. Hence, there is no
such penalty of medium period of reclusion perpetua. (People versus Tiburcio
Baculi, 246 SCRA)
IMPOSITION OF WRONG PENALTY: IT DOES NOT OBTAIN FINALITY
Suppose the court imposed a penalty of 25 years of reclusion perpetua for
the crime of rape and the accused did not appeal, does the judgment
become final and executory? No, such judgment is null and void because it
imposed a non-existent penalty. Hence, the court may nevertheless correct
the penalty imposed on the accused, that is, reclusion perpetua, it is merely
performing a duty inherent in the court. (People versus Nigel Gatward, GR
No. 119772-73, February 7, 1997)
DIFFERENCE BETWEEN RECLUSION PERPETUA AND LIFE IMPRISONMENT
The penalty of reclusion perpetua is different from life imprisonment. The
former carries with it accessory penalties, whereas life imprisonment does
not carry with it any accessory penalties; reclusion perpetua is that provided
for under the Revised Penal Code and under crimes defined by special laws
using the nomenclature under the Revised Penal Code ; life imprisonment is
that provided for violations of the Revised Penal Code. Reclusion Perpetua
may be reduced by one or two degrees while life imprisonment cannot be so
reduced. (People -vs- Rolnando Madriaga, GR No. 82293, July 23, 1992.)
WHICH IS MORE BURDENSOME LIFE IMPRISONMENT OF RECLUSION
PERPETUA
Reclusion perpetua has accessory penalties while life imprisonment does not.
However, life imprisonment does not have a fixed duration or extent while
reclusion perpetua has a duration of from twenty years and one day to forty
years. life imprisonment may span the natural life of the convict. (People
-versus- Rallagan, 247 SCRA 537)
RECLUSION PERPETUA AND LIFE IMPRISONMENT CANNOT BE INTER-CHANGE
WHEN IMPOSED AS PENALTY
Where the law violated provides for the penalty of reclusion perpetua,
impose the said penalty and not the penalty of life imprisonment. Where the

law imposes the penalty of life imprisonment, do not impose reclusion

perpetua. (People -vs- Rolando Madriaga, 211 SCRA 698)
THE REASON WHY RECLUSION PERPETUA HAS A RANGE DESPITE THE SAME
BEING INDIVISIBLE
There we also said that "if reclusion perpetua was reclassified as a divisible
penalty, then Article 63 of the Revised Penal Code would lose its reason and
basis for existence." The imputed duration of thirty (30) years of reclusion
perpetua, therefore, only serves as the basis for determining the convict's
eligibility for pardon or for the application of the three-fold rule in the service
of multiple penalties. (People -vs- Aspolinar Raganas, et al., GR No. 101188,
October 12, 1999)

RARE CASE OF APPLICATION OF RPC IN A SUPPLETORY CHARACTER DESPITE

THE PENALTY BEING LIFE IMPRISONMENT
Where the accused committed qualified violation of PD 704 (fishing with the
use of explosives), the imposable penalty for which is life imprisonment to
death. If the accused is entitled to a mitigating circumstance of voluntary
surrender, the court should impose life imprisonment applying, in a
suppletory character, Articles 13 and 63 of the Revised Penal Code. (People
-vs- Priscilla Balasa, GR No. 106357, September 3, 1998)
ACCUSED WHO IS SENTENCED TO RECLUSION PERPETUA IS STILL ENTITLED
TO EITHER FULL OR OF HIS PREVENTIVE IMPRISONMENT
If, during the trial, the accused was detained but, after trial, he was meted
the penalty of reclusion perpetua, he is still entitled to the full credit of his
preventive imprisonment because Article 29 of the Revised Penal Code does
not distinguish between divisible and indivisible penalties. (People -vsRolando Corpuz, 231 SCRA 480)

QUALIFIED THEFT

QUALIFIED THEFT IS PENALIZED BY RECLUSION PERPETUA IF AMOUNT

INVOLVED IS OVER P22,000.00

Under Article 309 of the Revised Penal Code, the maximum of the penalty for
qualified theft is prision mayor to reclusion temporal. However, under Article
310 of the Revised Penal Code, the penalty for the crime shall be two (2)
degrees higher than the specified in Article 309 of the Code. Under Article 74
of the Revised Penal Code, the penalty higher by one degree than another
given penalty, and if such higher penalty is death, the penalty shall be
reclusion perpetua of forty (40) years with the accessory penalties of death
under Article 40 of the Revised Penal Code. The accused shall not be entitled
to pardon before the lapse of forty (40) years. (People -vs- Fernando Canales,
297 SCRA 667)

THE PROBATION LAW (P.D. 968) AND ITS AMENDMENTS

PROBATION, ITS MEANING

A disposition under which a defendant, after conviction and sentence, is
subject to conditions imposed by the Court and under the supervision of a
probation officer.

PURPOSES OF PROBATION:
a. to promote the correction and rehabilitation of an offender by providing
him with personalized
community based treatment;
b. to provide an opportunity for his reformation and reintegration into the
community;
c. to prevent the commission of offenses.

SUBMISSION OF PETITION AND TIME OF FILING OFPETITION

The petition or application for probation must be filed directly with the Court
which sentenced the accused within 15 days from date of promulgation of
the decision convicting the accused, or in short within the period to appeal
otherwise the judgment shall become final and the accused shall be deemed

to have waived his right to probation.

EFFECT OF FILING OF PETITION FOR PROBATION
Upon filing of petition for probation, the court shall suspend the execution of
sentence.
Likewise, the filing of a petition for probation shall be deemed a waiver of the
right to appeal and in case an appeal is made immediately after conviction, a
filing of petition for probation still within the period to appeal, that is within
fifteen days from date of promulgation shall be deemed a withdrawal of the
appeal.
PENDING RESOLUTION OF PETITION, WHAT ARE THE PRIVILEDGE THAT
MAYBE GIVEN TO THE ACCUSED-PETITIONER?
1. if the accused, prior to the promulgation of decision of conviction is out on
bail, he may be allowed on
temporary liberty under his bail filed in said case;
2. if he is under detention, upon motion, he may be allowed temporary
liberty, if he cannot post a bond, on
recognizance of a responsible member of a community who shall guarantee
his appearance whenever
required by the court.
IN CASE THE APPLICANT FOR PROBATION CANNOT BE PRODUCED BY THE
CUSTODIAN ON RECOGNIZANCE, WHAT HAPPENS?
The custodian must be asked to explain why he should not be cited for
contempt for failing to produce the probationer when required by the court;
Summary hearing will be held for indirect contempt, and if custodian cannot
produce the petitioner, nor to explain his failure to produce the petitioner,
the custodian on recognizance shall be held in contempt of court.
WHAT IS A POST SENTENCE INVESTIGATION REPORT?
It is a report of the Parole and Probation Officer after conducting post
sentence investigation and interviews containing the circumstances
surrounding the offense for which the petitioner was convicted. The findings
should be drawn from the court records, police records, statement of

defendants, the aggrieved party and other persons who may know the
petitioner and all other matters material to the petition.
It will also include the psychological and social information regarding the
probationer; evaluation of the petitioner; suitability for probation; his
potential for rehabilitation; and may include the program for supervision and
suggested terms of conditions of probation and a recommendation either to
deny or grant the probation.
WHAT ARE THE MANDATORY CONDITIONS OF PROBATION?
a. To present himself to the probation officer concerned for supervision within
72 hours from receipt of said
order and
b. to report to the probation officer at least once a month during the period
of probation.
WHAT ARE THE OTHER CONDITIONS OF PROBATION?
a. cooperate with a program of supervision;
b. meet his family responsibilities;
c. devote himself to a specific employment and not to charge said
employment without prior written
approval of the probation officer;
d. comply with a program of payment of civil liability to the victim of his
heirs;
e. undergo medical, psychological or psychiatric examination and treatment
and/or enter and remain in a
specific institution, when required for that purposes;
f. pursue a prescribed secular study or vocational training;
g. attend or reside in a facility established for instruction or recreation of
persons on probation;
h. refrain from visiting houses of ill-repute;
i. abstain from drinking intoxicating beverages to excess;
j. permit the probation officer or an authorized social worker to visit his home
and place of work;
k. reside at premises approved by the court and not to change his residence
w/o prior written approval; and
l. satisfy any other condition related to the rehabilitation of the probationer

and not unduly restrictive of his

liberty or incompatible with his freedom of conscience.
m. plant trees ( see circular of the SC )

RULES ON OUTSIDE TRAVEL OF PROBATIONER

A probationer who desires to travel outside the jurisdiction of the city or
provincial probation officer for not more than 30 days, the permission of the
parole and probation officer must be sought. If for more than thirty (30) days,
aside from the permission of the parole and probation officer, the permission
of the court must likewise be sought.
EFFECT OF APPEAL BY THE ACCUSED OF HIS CONVICTION
a. If the accused appeals his conviction for the purpose of totally reversing
his conviction, he is deemed to have waived his right to probation.
b. The rule that if the accused appeals his conviction only with respect to the
penalty, as he believes the penalty is excessive or wrong, as the penalty is
probationable, and the appellate court sustains the accused may still apply
for probation, has already been abandoned. An appeal therefore, irrespective
of its purpose, to overturn the entire decision or only with respect to penalty
is a waiver to probation, has already been abandoned. An appeal therefore,
irrespective of its purpose, to overturn the entire decision or only with
respect to penalty is a waiver to probation.
CONFIDENTIALITY OF RECORDS OF PROBATION
The investigation report and the supervision and history of a probationer
obtained under PD No. 968 and under these rules shall be privileged and
shall not be disclosed directly or indirectly to anyone other than the
probation administration or the court concerned the court which granted the
probation or where the probation was transferred may allow the probationer
to inspect the aforesaid documents or his lawyer, whenever such disclosure
may be desirable or helpful to them.
Any government office may ask for the records of probation from the court
for its official use or from the administrator.

Sec. 29, PD 968: VIOLATION OF CONFIDENTIAL NATURE OF PROBATION

RECORDS. The penalty of imprisonment ranging from six months and one
day to six years and a fine ranging from hundred to six thousand pesos shall
be imposed upon any person who violates Section 17 hereof.
MODIFICATION OF CONDITION OR PERIOD OF PROBATION
The court, on motion, or motu propio may modify the conditions of probation
or modify the period of probation as circumstances may warrant.

WHO ARE DISQUALIFIED TO UNDERGO PROBATION

1. Those sentenced to serve a maximum term of imprisonment of more than
six years.
2. Those convicted of any offense against the security of the state;
3. Those who have been previously convicted by final judgment of an offense
punished by imprisonment of not less than one moth and one day and/or a
fine of not less than P200.00;
4. Those who have been once on probation under the provisions of this
decree.
5. Those convicted of RA 9156.
6. Those convicted of violation of election laws.
PERIOD OF PROBATION
1. If the probationer has been sentenced to an imprisonment of not more
than one year, the probation shall not exceed two years;
2. In all other cases, not to exceed six years;
3. In case the penalty is fine, the probation shall not be less than the period
of subsidiary imprisonment nor more than twice of the subsidiary
imprisonment.
AMENDMENT TO SECTION 4 OF PD 968:
"Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial
court may, after it shall have convicted and sentenced a defendant, and
upon application by said defendant within the period for perfecting an
appeal, suspend the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions as it may

deem best; Provided, That no application for probation shall be entertained

or granted if the defendant has perfected the appeal from the judgment of
conviction.
"Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be filed with
the trial court. The filing of the application shall be deemed a waiver of the
right to appeal.
"An order granting or denying probation shall not be appealable."
Thus, a person who was sentenced to destierro cannot apply for probation.
Reason: it does not involved imprisonment or fine. (PD 1990)

JURISPRUDENCE

UNDERLYING PHILOSOPHY OF PROBATION

The underlying philosophy of probation is indeed one of liberality towards the
accused. It is not served by a harsh and stringent interpretation of the
statutory provisions. Probation is a major step taken by our Government
towards the deterrence and minimizing of crime and the humanization of
criminal justice. In line with the public policy behind probation, the right of
appeal should not be irrevocably lost from the moment a convicted accused
files an application for probation. Appeal and probation spring from the same
policy considerations of justice, humanity, and compassion. (Yusi v Morales,
4/28/83)

PROBATION IS NOT A RIGHT BUT A PRIVILEGE

Probation is a mere privilege and its grant rests solely upon the discretion of
the court. As aptly noted in U.S. vs. Durken, this discretion is to be exercised
primarily for the benefit of organized society and only incidentally for the
benefit of the accused. (Tolentino v. Alconcel, G.R. No. 63400, 3/18/83). Even
if a convicted person is not included in the list of offenders disqualified from
the benefits of a decree, the grant of probation is nevertheless not automatic
or ministerial, (Pablo Bernardo v. Balagot, 215 SCRA 526) therefore a petition

for probation may be denied by the Court.

MAIN CRITERION FOR DETERMINING WHO MAY BE GRANTED PROBATION.

The main criterion laid down by the Probation law in determining who may be
granted probation is based on the penalty imposed and not on the nature of
the crime. By the relative lightness of the offense, as measured by the
penalty imposed, more than by its nature, as the law so ordains the offender
is not such a serious menace to society as to be wrested away therefrom, as
the more dangerous type of criminals should be. Hence, in the case at bar,
the first reason given by the respondent judge for his denial of the petition
for probation that, "probation will depreciate the seriousness of the offense
committed" would thus be writing into the law a new ground for disqualifying
a first-offender from the benefits of probation. (Santos v. Cruz-Pano, 1/17/83)

TIMELINESS OF FILING APPLICATION FOR PROBATION

The accused must file a Petition for Probation within the period for appeal. If
the decision of conviction has become final and executory, the accused is
barred from filing a Petition for Probation (Pablo Francisco v. C.A., 4/6/95).

ORDER DENYING PROBATION NOT APPEALABLE, REMEDY CERTIORARI

Although an order denying probation is not appealable, the accused may file
a motion for Certiorari from said order (Heirs of Francisco Abueg v. C.A., 219
SCRA 78)

EFFECT OF FILING PETITION FOR PROBATION, WAIVER OF RIGHT TO APPEAL

AND FINALITY OF JUDGEMENT
A judgment of conviction becomes final when the accused files a petition for
probation. However, the judgement is not executory until the petition for
probation is resolved. The filing of the petition for probation is a waiver by
the accused of his right to appeal the judgement of conviction (Heirs of
Francisco Abueg v. C.A., supra).

MULTIPLE CONVICTIONS IN SEVERAL CASES PROBATIONABLE IF PENALTY FOR

EACH CONVICTION IS PROBATIONABLE
." Evidently, the law does not intend to sum up the penalties imposed but to
take each penalty, separately and distinctly with the others. Consequently,
even if petitioner was supposed to have served his prison term of one (1)
year and one (1) day to one (1) year and eight (8) months of prision
correccional sixteen (16) times as he was sentenced to serve the prison term
for "each crime committed on each date of each case, as alleged in the
information(s)," and in each of the four (4) informations, he was charged with
having defamed the four (4) private complainants on four (4) different,
separate days, he was still eligible for probation, as each prison term
imposed on petitioner was probationable. (Francisco v. CA; 4/16/95)

REASON FOR FIXING CUT OFF POINT AT A MAXIMUM OF SIX YEARS

IMPRISONMENT FOR PROBATION.
Fixing the cut-off point at a maximum term of six (6) years imprisonment for
probation is based on the assumption that those sentenced to higher
penalties pose too great a risk to society, not just because of their
demonstrated capability for serious wrongdoing but because of the gravity
and serious consequences of the offense they might further commit. The
Probation Law, as amended, disqualifies only those who have been convicted
of grave felonies as defined in Art. 9 in relation to Art. 25 of The Revised
Penal Code, and not necessarily those who have been convicted of multiple
offenses in a single proceeding who are deemed to be less perverse. Hence,
the basis of the disqualification is principally the gravity of the offense
committed and the concomitant degree of penalty imposed. Those
sentenced to a maximum term not exceeding six (6) years are not generally
considered callous, hard core criminals, and thus may avail of probation

VIOLATION OF RA 6425, A VALID CAUSE FOR DISMISSAL IN SERVICE IN THE

GOVERNMENT DESPITE PROBATION
Drug-pushing, as a crime, has been variously condemned as "an especially
vicious crime," "one of the most pernicious evils that has ever crept into our
society." For those who become addicted to it "not only slide into the ranks of

the living dead, what is worse, they become a grave menace to the safety of
law-abiding members of society," while "peddlers of drugs are actually
agents of destruction. The deserve no less than the maximum penalty [of
death]."
There is no doubt that drug-pushing is a crime which involves moral
turpitude and implies "every thing which is done contrary to justice, honesty,
modesty or good morals" including "acts of baseness, vileness, or depravity
in the private and social duties which a man owes to his fellowmen or to
society in general, contrary to the accepted rule of right and duty between
man and man." Indeed nothing is more depraved than for anyone to be a
merchant of death by selling prohibited drugs, an act which, as this Court
said in one case,"often breeds other crimes. It is not what we might call a
'contained' crime whose consequences are limited to that crime alone, like
swindling and bigamy. Court and police records show that a significant
number of murders, rapes, and similar offenses have been committed by
persons under the influence of dangerous drugs, or while they are 'high.'
While spreading such drugs, the drug-pusher is also abetting, through his
agreed and irresponsibility, the commission of other crimes." The image of
the judiciary is tarnished by conduct, which involves moral turpitude. While
indeed the purpose of the Probation Law (P.D. No. 968, as amended) is to
save valuable human material, it must not be forgotten that unlike pardon
probation does not obliterate the crime of which the person under probation
has been convicted. The reform and rehabilitation of the probationer cannot
justify his retention in the government service. He may seek to reenter
government service, but only after he has shown that he is fit to serve once
again. It cannot be repeated too often that a public office is a public trust,
which demands of those in its service the highest degree of morality. (OCA v.
Librado 260 SCRA 624, 8/22/96)

PETITIONER MAY STILL EXHORT OFFENDER TO PERFORM CERTAIN ACTS

DESPITE DISCHARGE FROM PROBATION IN CERTAIN CASES
Petitioner Arthur M. Cuevas, Jr.'s discharge from probation without any
infraction of the attendant conditions therefor and the various certifications
attesting to his righteous, peaceful and civic-oriented character prove that
he has taken decisive steps to purge himself of his deficiency in moral
character and atone for the unfortunate death of Raul I. Camaligan. The
Court is prepared to give him the benefit of the doubt, taking judicial notice

of the general tendency of the youth to be rash, temerarious and

uncalculating. Let it be stressed to herein petitioner that the lawyer's oath is
not a mere formality recited for a few minutes in the glare of flashing
cameras and before the presence of select witnesses. Petitioner is exhorted
to conduct himself beyond reproach at all times and to live strictly according
to his oath and the Code of Professional Responsibility. And, to paraphrase
Mr. Justice Padilla's comment in the sister case of Re: Petition of Al Argosino
To Take The Lawyer's Oath, Bar Matter No. 712, March 19, 1997, "[t]he Court
sincerely hopes that" Mr. Cuevas, Jr., "will continue with the assistance he
has been giving to his community. As a lawyer he will now be in a better
position to render legal and other services to the more unfortunate members
of society". (In Re: Cuevas, Jr.; 1/27/98)

EXPIRATION OF PERIOD OF PROBATION IS NOT TERMINATION, ORDER OF

COURT REQUIRED
The mere expiration of the period for probation does not, ipso facto,
terminate the probation. Probation is not co-terminus with its period, there
must be an order from the Court of final discharge, terminating the
probation. If the accused violates the condition of the probation before the
issuance of said order, the probation may be revoked by the Court (Manuel
Bala v. Martinez, 181 SCRA 459).

ANTI-FENCING LAW
OF 1979 (PD NO. 1612)
DEFINITION
Fencing as defined in Sec. 2 of PD No. 1612 (Anti-Fencing Law) is the act of
any person who, with intent to gain for himself or for another, shall buy,
receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and
sell, or in any manner deal in any article, item, object or anything of value
which he knows or should be known to him, or to have been derived from the
proceeds of the crime of robbery or theft. (Dizon-Pamintuan vs. People, GR
111426, 11 July 94).

BRIEF HISTORY OF PD 1612 OR THE ANTI-FENCING LAW

Presidential Decree No. 1612 or commonly known as the Anti-Fencing Law of
1979 was enacted under the authority of therein President Ferdinand Marcos.
The law took effect on March 2, 1979. The Implementing Rules and
Regulations of the Anti-Fencing Law were subsequently formulated and it
took effect on June 15, 1979.
THE PURPOSE OF ENACTING PD 1612
The Anti-Fencing Law was made to curtail and put an end to the rampant
robbery of government and private properties. With the existence of "ready
buyers", the "business" of robbing and stealing have become profitable.
Hence, a law was enacted to also punish those who buy stolen properties.
For if there are no buyers then the malefactors could not profit from their
wrong doings.

WHAT IS FENCING LAW AND HOW IT CAN BE COMMITTED

"Fencing" is the act of any person who, with intent to gain for himself or for
another, shall buy receive, possess, keep, acquire, conceal, sell or dispose of,
or shall buy and sell, or in any other manner deal in any article, item, object
or anything of value which he knows, or should be known to him, to have
been derived from the proceeds of the crime of robbery or theft. A "Fence"
includes any person, firm, association corporation or partnership or other
organization who/ which commits the act of fencing.

WHO ARE LIABLE FOR THE CRIME OF FENCING; AND ITS PENALTIES:
The person liable is the one buying, keeping, concealing and selling the
stolen items. If the fence is a corporation, partnership, association or firm,
the one liable is the president or the manager or the officer who knows or
should have know the fact that the offense was committed.
The law provide for penalty range for persons convicted of the crime of
fencing. Their penalty depends on the value of the goods or items stolen or
bought:

a. The penalty of prision mayor, if the value of the property involved is more
than 12,000 pesos but not exceeding 22,000 pesos; if the value of such
property exceeds the latter sum, the penalty provided in this paragraph shall
be imposed in its maximum period, adding one year for each additional
10,000 pesos; but the total penalty which may be imposed shall not exceed
twenty years. In such cases, the penalty shall be termed reclusion temporal
and the accessory penalty pertaining thereto provided in the Revised Penal
Code shall also be imposed.
b. The penalty of prision correccional in its medium and maximum periods, if
the value of the property robbed or stolen is more than 6,000 pesos but not
exceeding 12, 000 pesos;
c. The penalty of prision correccional in its minimum and medium periods, if
the value of the property involved is more than 200 pesos but not exceeding
6,000 pesos;
d. The penalty of arresto mayor in its medium period to prision correccional
in its minimum period, if the value of the property involved is over 50 but not
exceeding 200 pesos;
e. The penalty of arresto mayor in its medium period if such value is over five
(5) pesos but not exceeding 50 pesos.
f. The penalty of arresto mayor in its minimum period if such value does not
exceed 5 pesos.
RULES REGARDING BUY AND SELL OF GOODS PARTICULARLY SECOND HAND
GOODS
The law requires the establishment engaged in the buy and sell of goods to
obtain a clearance or permit to sell "used second hand items", to give effect
to the purpose of the law in putting an end to buying and selling stolen
items. Failure of which makes the owner or manager liable as a fence.
The Implementing Rules provides for the guidelines of issuance of clearances
or permits to sell used or secondhand items. It provided for the definition of
the following terms:
1. "Used secondhand article" shall refer to any goods, article, items, object or

anything of value obtained from an unlicensed dealer or supplier, regardless

of whether the same has actually or in fact been used.
2. "Unlicensed dealer/supplier" shall refer to any persons, partnership, firm,
corporation, association or any other entity or establishment not licensed by
the government to engage in the business of dealing in or of supplying the
articles defined in the preceding paragraph;
3. "Store", "establishment" or "entity" shall be construed to include any
individual dealing in the buying and selling used secondhand articles, as
defined in paragraph hereof;
4. "Buy and Sell" refer to the transaction whereby one purchases used
secondhand articles for the purpose of resale to third persons;
5. "Station Commander" shall refer to the Station Commander of the
Integrated National Police within the territorial limits of the town or city
district where the store, establishment or entity dealing in the buying and
selling of used secondhand articles is located.

PROCEDURE FOR SECURING PERMIT/CLEARANCE

The Implementing Rules provided for the method of obtaining clearance or
permit. No fee will be charged for the issuance of the clearance/permit.
Failure to secure clearance/permit shall be punished as a fence, that may
result to the cancellation of business license.
1. The Station Commander shall require the owner of a store or the
President, manager or responsible officer in having in stock used secondhand
articles, to submit an initial affidavit within thirty (30) days from receipt of
notice for the purpose thereof and subsequent affidavits once every fifteen
(15) days within five (5) days after the period covered, which shall contain:
a. complete inventory of such articles including the names and addresses
from whom the articles were acquired.
b. Full list of articles to be sold or offered for sale including the time and
place of sale
c. Place where the articles are presently deposited.
The Station Commander may, require the submission of an affidavit

accompanied by other documents showing proof of legitimacy of acquisition.

2. Those who wish to secure the permit/clearance, shall file an application
with the Station Commander concerned, which states:
a. name, address and other pertinent circumstances
b. article to be sold or offered for sale to the public and the name and
address of the unlicensed dealer or supplier from whom such article was
acquired.
c. Include the receipt or document showing proof of legitimacy of acquisition.
3. The Station Commander shall examine the documents attached to the
application and may require the presentation of other additional documents,
if necessary, to show satisfactory proof of the legitimacy of acquisition of the
article, subject to the following conditions:
a. if the Station Commander is not satisfied with the proof of legitimacy of
acquisition, he shall cause the publication of the notice, at the expense of
the one seeking clearance/permit, in a newspaper of general circulation for
two consecutive days, stating:
> articles acquired from unlicensed dealer or supplier
> the names and addresses of the persons from whom they were acquired
> that such articles are to be sold or offered for sale to the public at the
address of the store, establishment or other entity seeking the
clearance/permit.
4. If there are no newspapers in general circulation, the party seeking the
clearance/permit shall, post a notice daily for one week on the bulletin board
of the municipal building of the town where the store, firm, establishment or
entity is located or, in the case of an individual, where the articles in his
possession are to be sold or offered for sale.
5. If after 15 days, upon expiration of the period of publication or of the
notice, no claim is made to any of the articles enumerated in the notice, the
Station Commander shall issue the clearance or permit sought.
6. If before expiration of the same period for the publication of the notice or
its posting, it shall appear that any of the articles in question is stolen
property, the Station Commander shall hold the article in restraint as
evidence in any appropriate case to be filed.
Articles held in restraint shall kept and disposed of as the circumstances of
each case permit. In any case it shall be the duty of the Station Commander
concerned to advise/notify the Commission on Audit of the case and comply
with such procedure as may be proper under applicable existing laws, rules
and regulations.
7. The Station Commander shall, within seventy-two (72) hours from receipt

of the application, act thereon by either issuing the clearance/permit

requested or denying the same. Denial of an application shall be in writing
and shall state in brief the reason/s thereof.
8. Any party not satisfied with the decision of the Station Commander may
appeal the same within 10 days to the proper INP (now PNP) District
Superintendent and further to the INP (now PNP) Director. The decision of the
Director can still be appealed top the Director-General, within 10 days,
whose decision may be appealed with the Minister (now Secretary) of
National Defense, within 15 days, which decision is final.

PRESUMPTION
Mere possession of any good, article, item, object or anything fo value which
has been the subject of robbery or thievery, shall be prima facie evidence of
fencing.
ELEMENTS
1. A crime of robbery or theft has been committed;
2. The accused, who is not a principal or accomplice in the commission of the
crime of robbery or theft, buys, receives, possess, keeps, acquires, conceals,
sells, or disposes, or buys and sells, or in any manner deals in any article,
item, object or anything of value, which has been derived from the proceeds
of the said crime;
3. The accused knows or should have known that the said article, item, or
object or anything of value has been derived from the proceeds of the crime
of robbery or theft; and
4. There is, on the part of the accused, intent to gain for himself or for
another. (Dizon-Pamintuan vs People, GR 111426, 11 July 94)
As regards the first element, the crime of robbery or theft should have been
committed before crime of fencing can be committed. The person
committing the crime of robbery or theft, may or may not be the same
person committing the crime of fencing. As in the case of D.M. Consunji, Inc.,
vs. Esguerra, quantities of phelonic plywood were stolen and the Court held
that qualified theft had been committed. In People vs. Lucero there was first
a snatching incident, where the bag of Mrs. Maripaz Bernard Ramolete was
snatch in the public market of Carbon, Cebu City, where she lost a Chinese
Gold Necklace and pendant worth some P4,000.00 to snatchers Manuel

Elardo and Zacarias Pateras. The snatchers sold the items to Manuel Lucero.
Consequently, Lucero was charged with violation of the Anti-Fencing Law.
However, in this case, no eyewitness pointed to Lucero as the perpetrator
and the evidence of the prosecution was not strong enough to convict him.
The second element speaks of the overt act of keeping, buying, receiving,
possessing, acquiring, concealing, selling or disposing or in any manner
deals with stolen items. It is thus illustrated in the case of Lim vs. Court of
Appeals, where the accused, Juanito Lim stored and kept in his bodega and
subsequently bought or disposed of the nine (9) pieces of stolen tires with
rims owned by Loui Anton Bond.
The accused known or should have known that the goods were stolen. As
pointed out in the case of People vs. Adriatico, the court in convicting Norma
Adriatico, stated that it was impossible for her to know that the jewelry were
stolen because of the fact that Crisilita was willing to part with a considerable
number of jewelry at measly sum, and this should have apprised Norma of
the possibility that they were stolen goods. The approximate total value of
the jewelry were held to be at P20,000.00, and Norma having bought it from
Crisilita for only P2,700. The court also considered the fact that Norma
engage in the business of buying and selling gold and silver, which business
is very well exposed to the practice of fencing. This requires more than
ordinary case and caution in dealing with customers. As noted by the trial
court:
". . . the Court is not inclined to accept the accused's theory of buying in
good faith and disclaimer of ever seeing, much more, buying the other
articles. Human experience belies her allegations as no businessman or
woman at that, would let go of such opportunities for a clean profit at the
expense of innocent owners.
The Court in convicting Ernesto Dunlao Sr., noted that the stolen articles
composed of farrowing crates and G.I. pipes were found displayed on
petitioner's shelves inside his compound. (Dunalao, Sr. v. CA, 08/22/96)
In the case of People v. Muere (G.R.12902, 10/18/94), the third element was
not proven. This case involves the selling of alleged stolen Kenwood Stereo
Unit in the store Danvir Trading, owned by the spouses Muere. The store is
engaged in buying and selling of second hand merchandise located at Pasay
Road, Makati. The said stereo was bought from Wynn's Audio, an existing

establishment. The court held that there is no proof that the spouses Muere,
had knowledge of the fact that the stereo was stolen. The spouses Muere
purchased the stereo from a known merchant and the unit is displayed for
sale in their store. These actions are not indicative of a conduct of a guilty
person.
On the same vein, the third element did not exist in the case of D.M.
Consunji, Inc. (Consunji v. Esguerra, 07/30/96) where the subject of the court
action are the alleged stolen phelonic plywood owned by D.M. Consunji, Inc.,
later found to be in the premises of MC Industrial Sales and Seato trading
Company, owned respectively by Eduardo Ching and the spouses Sy.
Respondents presented sales receipts covering their purchase of the items
from Paramount Industrial, which is a known hardware store in Caloocan,
thus they had no reason to suspect that the said items were products of
theft.
The last element is that there is intent to gain for himself or for another.
However, intent to gain need not be proven in crimes punishable by a special
law such as the Anti-Fencing Law. The crimes punishable by special laws are
called "acts mala prohibita". The rule on the subject is that in acts mala
prohibita, the only inquiry is that, has the law been violated? (in Gatdner v.
People, as cited in US v. Go Chico, 14 Phils. 134) When the act is prohibited
by law, intent is immaterial.
Likewise, dolo or deceit is immaterial in crimes punishable by special statute
like the Anti-Fencing Law. It is the act itself which constitutes the offense and
not the motive or intent. Intent to gain is a mental state, the existence if
which is demonstrated by the overt acts of the person. The mental state is
presumed from the commission of an unlawful act. (Dunlao v. CA) again,
intent to gain is a mental state, the existence of which is demonstrated by
the overt acts of person, as the keeping of stolen items for subsequent
selling.
A FENCE MAY BE PROSECUTED UNDER THE RPC OR PD 1612
The state may thus choose to prosecute him either under the RPC or PD NO.
1612 although the preference for the latter would seem inevitable
considering that fencing is a malum prohibitum, and PD No. 1612 creates a
presumption of fencing and prescribes a higher penalty based on the value
of the property. (supra)

MERE POSSESSION OF STOLEN ARTICLE PRIMA FACIE EVIDENCE OF FENCING

Since Sec. 5 of PD NO. 1612 expressly provides that mere possession of any
good, article, item, object or anything of value which has been the subject of
robbery or thievery shall be prima facie evidence of fencing it follows that
the accused is presumed to have knowledge of the fact that the items found
in her possession were the proceeds of robbery or theft. The presumption
does not offend the presumption of innocence enshrined in the fundamental
law.

DISTINCTION BETWEEN FENCING AND ROBBERY

The law on fencing does not require the accused to have participation in the
criminal design to commit or to have been in any wise involved in the
commission of the crime of robbery or theft. Neither is the crime of robbery
or theft made to depend on an act of fencing in order that it can be
consummated. (People v De Guzman, GR 77368).
Robbery is the taking of personal property belonging to another, with intent
to gain, by means of violence against or intimidation of any person, or using
force upon anything.
On the other hand, fencing is the act of any person who, with intent to gain
for himself or for another, shall buy, receive, possess, keep, acquire, conceal,
sell or dispose of, or shall buy and sell, or in any other manner deal in any
article, item, object or anything of value which he knows, or shall be known
to him, to have been derived from the proceeds of the crime of robbery or
theft.

FENCING AS A CRIME INVOLVING MORAL TURPITUDE.

In violation of the Anti-Fencing Law, actual knowledge by the "fence" of the
fact that property received is stolen displays the same degree of malicious
deprivation of one's rightful property as that which animated the robbery or
theft which by their very nature are crimes of moral turpitude. (Dela Torre v.
COMELEC 07/05/96)

Moral turpitude can be derived from the third element - accused knows or
should have known that the items were stolen. Participation of each felon,
one being the robber or the thief or the actual perpetrators, and the other as
the fence, differs in point in time and degree but both invaded one's peaceful
dominion for gain. (Supra) Both crimes negated the principle of each
person's duty to his fellowmen not to appropriate things that they do not own
or return something acquired by mistake or with malice. This signifies moral
turpitude with moral unfitness.
In the case of Dela Torre, he was declared disqualified from running the
position of Mayor in Cavinti, Laguna in the last May 8, 1995 elections
because of the fact of the disqualification under Sec. 40 of the Local
Government Code, of persons running for elective position -"Sec. 40
Disqualifications - (a) Those sentenced by final judgement for an offense
involving moral turpitude..."
Dela Torre was disqualified because of his prior conviction of the crime of
fencing wherein he admitted all the elements of the crime of fencing.

ESSENCE OF VIOLATION OF PD 1612, SEC. 2 OR ANTI-FENCING

PD 1612, Section 2 thereof requires that the offender buys or otherwise
acquires and then sells or disposes of any object of value which he knows or
should he known to him to have been derived from the proceeds of the crime
of robbery or theft. (Caoili v CA; GR 128369, 12/22/97)

PROOF OF PURCHASE WHEN GOODS ARE IN POSSESSION OF OFFENDER NOT

NECESSARY IN ANTI-FENCING
The law does not require proof of purchase of the stolen articles by
petitioner, as mere possession thereof is enough to give rise to a
presumption of fencing.
It was incumbent upon petitioner to overthrow this presumption by sufficient
and convincing evidence. (Caoili v. CA; GR 128369, 12/22/97)

BATAS PAMBANSA BLG. 22

BOUNCING CHECKS LAW

ACTS PUNISHABLE:
a. any person who makes or draws and issues any check to apply on account
or for value, knowing at the time of issue that he does not have sufficient
funds in or credit with the drawee bank, for the payment of such check in full
upon its presentment, which check is subsequently dishonored by the
drawee bank for insufficiency of funds, or credit, or would have been
dishonored for the same reason had not the drawee, without any valid
reason, ordered the bank to stop payment.
b. Any person who having sufficient funds in or credit with the drawee bank
when he makes or draws and issues a check, shall fail to keep sufficient
funds or to maintain a credit to cover the full amount of the check if
presented within a period of ninety days from date appearing thereon, for
which reason, it is dishonored by the drawee bank.
HOW TO ESTABLISH GUILT OF ACCUSED IN BP 22
To establish her guilt, it is indispensable that the checks she issued for which
she was subsequently charged, be offered in evidence because the
gravamen of the offense charged is the act of knowingly issuing a check with
insufficient funds. Clearly, it was error to convict complainant on the basis of
her letter alone. Nevertheless, despite this incorrect interpretation of a rule
on evidence, we do not find the same as sufficiently constitutive of the
charges of gross ignorance of the law and of knowingly rendering an unjust
decision. Rather, it is at most an error in judgment, for which, as a general
rule, he cannot be held administratively liable. In this regard, we reiterate
the prevailing rule in our jurisdiction as established by current jurisprudence.
(Gutierrez v Pallatao; 8/8/98)

NOTICE, AN INDISPENSABLE REQUISITE FOR PROSECUTION

Section 3 of BP 22 requires that the holder of the check or the drawee bank,
must notify the drawer of the check that the same was dishonored, if the
same is presented within ninety days from date of issuance, and upon notice

the drawer has five days within which to make arrangements for the
payment of the check or pay the same in full.

DUTY OF THE DRAWEE BANK

The drawee bank has the duty to cause to be written, printed or stamped in
plain language thereon, or attached thereto the reason for the drawees
dishonor or refusal to pay the same. If the drawee bank fails to do so,
prosecution for violation of BP 22 may not prosper.
RULE IN CASE OF DISHONOR DUE TO STOP PAYMENT
The drawee bank has not only the duty to indicate that the drawer stopped
the payment and the reason for the stop payment. The drawee bank is
further obligated to state whether the drawer of the check has sufficient
funds in the bank or not.

AGREEMENT OF PARTIES REGARDING THE CHECK IS NOT A DEFENSE

In the case of People vs Nitafan, 215 SCRA, the agreement of the parties in
respect to the issuance of the check is inconsequential or will not affect the
violation of BP 22, if the check is presented to the bank and the same was
dishonored due to insufficiency of funds.

CHECKS ISSUED IN PAYMENT OF INSTALLMENT

Checks issued in payment for installment covered by promissory note and
said checks bounced, the drawer is liable if the checks were drawn against
insufficient funds, especially that the drawer, upon signing of the promissory
note, closed his account. Said check is still with consideration. (Caram
Resources v. Contreras)
In this case, the Judge was even held administratively liable.

CHECK DRAWN AGAINST A DOLLAR ACCOUNT. RULE:

A check drawn against a dollar account in a foreign country is still violative of

the provisions of BP 22 so long as the check is issued, delivered or uttered in
the Philippines, even if the same is payable outside of the Philippines (De
Villa v. CA)
GUARANTEE CHECKS, DRAWER, STILL LIABLE
The mere act of issuing a worthless check is punishable. Offender cannot
claim good faith for it is malum prohibitum.
In the case of Magno vs CA, when accused issued a check as warranty
deposit for lease of certain equipment, even knowing that he has no funds or
insufficient funds in the bank is not liable, if the lessor of the equipment
pulled out the loaned equipment. The drawer has no obligation to make good
the check because there is no more deposit to guaranty.

ISSUANCE OF GUARANTEE CHECKS WHICH WAS DISHONORED IN VIOLATION

AND PURPOSE OF THE LAW
The intention of the framers of BP 22 is to make a mere act of issuing a
worthless check malum prohibitum. In prosecutions for violation of BP 22,
therefore, prejudice or damage is not prerequisite for conviction.
The agreement surrounding the issuance of the checks need not be first
locked into, since the law has provided that the mere issuance of any kind of
check; regardless of the intent of the parties, i.e., whether the check is
intended merely to serve as guarantee or deposit, but which checks is
subsequently dishonored, makes the person who issued the check liable.
(Lazaro vs CA, et al., GR 105461).

CAN A PERSON BE HELD LIABLE FOR ISSUING A CHECK WITH SUFFICIENT

FUNDS FOR VIOLATION OF BP 22?
Yes. Paragraph 2 of Section 1 of BP 22 provides:
The same penalty shall be imposed upon any person who having sufficient
funds in or credit with the drawee bank when he makes or draws and issues
a check, shall fail to keep sufficient funds or to maintain a credit to cover the

full amount of the check if presented within a period of 90 days from the
date appearing thereon, for which reason, it is dishonored by the drawee
bank.

RULE ON RENDERING UNJUST JUDGMENT, IGNORANCE, ETC. BY A JUDGE

In the case of De la Cruz vs. Concepcion this Court declared:
"Mere errors in the appreciation of evidence, unless so gross and patent as to
produce an inference of ignorance or bad faith, or of knowing rendition of an
unjust decision, are irrelevant and immaterial in an administrative
proceeding against him. No one, called upon to try facts or interpret the law
in the process of administering justice, can be infallible in his judgment. All
that is expected of him is that he follow the rules prescribed to ensure a fair
and impartial hearing, assess the different factors that emerge therefrom
and bear on the issues presented, and on the basis of the conclusions he
finds established, with only his conscience and knowledge of the law to guide
him, adjudicate the case accordingly." (Gutierrez v Pallatao; Adm. Matter
#RTJ-95-1326, July 8, 1998)

DIFFERENCE BETWEEN ESTAFA AND VIOLATION OF BP 22

In the crime of estafa, deceit and damage are essential elements of the
offense and have to be established with satisfactory proof to warrant
conviction. For violation of the Bouncing Checks Law, on the other hand, the
elements of deceit and damage are neither essential nor required. Rather,
the elements of B.P. Blg. 22 are (a) the making, drawing and issuance of any
check to apply to account or for value; (b) the maker, drawer or issuer knows
at the time of issuance that he does not have sufficient funds in or credit
with the drawee bank for the payment of such check in full upon its
presentment; and, (c) the check is subsequently dishonored by the drawee
bank for insufficiency of funds or credit or would have been dishonored for
the same reason had not the drawer, without valid reason, ordered the bank
to stop payment. (Uy v Court of Appeals, GR 119000, July 28, 1997)

JURISDICTION IN BP 22 CASES

In respect of the Bouncing checks case, the offense also appears to be

continuing in nature. It is true that the offense is committed by the very fact
of its performance (Colmenares vs. Villar, No. L-27126, May 29, 1970, 33
SCRA 186); and that the Bouncing Checks Law penalizes not only the fact of
dishonor of a check but also the act of making or drawing and issuance of a
bouncing check (People vs. Hon. Veridiano, II, No. L-62243, 132 SCRA 523).
The case, therefore, could have been filed also in Bulacan. As held in Que vs.
People of the Philippines, G.R. Nos. 75217-18, September 11, 1987 "the
determinative factor (in determining venue) is the place of the issuance of
the check". However, it is likewise true that knowledge on the part of the
maker or drawer of the check of the insufficiency of his funds, which is an
essential ingredient of the offense is by itself a continuing eventuality,
whether the accused be within one territory or another (People vs. Hon.
Manzanilla, G.R. Nos. 66003-04, December 11, 1987). Accordingly,
jurisdiction to take cognizance of the offense also lies in the Regional Trial
Court of Pampanga.
And, as pointed out in the Manzanilla case, jurisdiction or venue is
determined by the allegation in the Information, which are controlling
(Arches vs. Bellosillo, 81 Phil. 190, cited in Tuzon vs. Cruz, No. L-27410,
August 28, 1975, 66 SCRA 235). The Information filed herein specifically
alleges that the crime was committed in San Fernando Pampanga and
therefore within the jurisdiction of the Court below.
This ruling was reiterated in the case of Lim vs. Rodrigo, 167 SCRA 487,
where it was held:
Besides, it was held in People v. Hon. Manzanilla, supra, that as "violation of
the bad checks act is committed when one 'makes or draws and issues any
check [sic] to apply on account or for value, knowing at the time issue that
he does not have sufficient funds' or having sufficient funds in or credit with
the drawee bank . . . shall fail to keep sufficient funds or to maintain a credit
to cover the full amount of the check if presented within a period of ninety
(90) days from the date appearing thereon, for which reason it is dishonored
by the drawee bank," "knowledge" is an essential ingredient of the offense
charge. As defined by the statute, knowledge, is, by itself, a continuing
eventuality, whether the accused be within one territory or another. This
being the case, the Regional Trial Court of Baguio City has jurisdiction to try
Criminal Case No. 2089-R (688).

Moreover, we ruled in the same case of People v. Hon. Manzanilla, reiterated

in People vs. Grospe, supra, that jurisdiction or venue is determined by the
allegations in the information. The allegation in the information under
consideration that the offense was committed in Baguio City is therefore
controlling and sufficient to vest jurisdiction upon the Regional Trial Court of
Baguio City.
In the case at bench it appears that the three (3) checks were deposited in
Lucena City. As to the second error wherein the petitioner asserted that the
checks were issued "as a guarantee only for the feeds delivered to him" and
that there is no estafa if a check is issued in payment of a pre-existing
obligation, the Court of Appeals pointed out that the petitioner obviously
failed to distinguish a violation of B.P. Blg. 22 from estafa under Article 315
(2) [d] of the Revised Penal Code. It further stressed that B.P. Blg. 22 applies
even in cases where dishonored checks were issued as a guarantee or for
deposit only, for it makes no distinction as to whether the checks within its
contemplation are issued in payment of an obligation or merely to guarantee
the said obligation and the history of its enactment evinces the definite
legislative intent to make the prohibition all-embracing. (Ibasco vs CA,
9/5/96)

ACTUAL KNOWLEDGE OF INSUFFICIENCY OF FUNDS ESSENTIAL IN BP 22

Knowledge of insufficiency of funds or credit in the drawee bank for the
payment of a check upon its presentment is an essential element of the
offense. There is a prima facie presumption of the existence of this element
from the fact of drawing, issuing or making a check, the payment of which
was subsequently refused for insufficiency of funds. It is important to stress,
however, that this is not a conclusive presumption that forecloses or
precludes the presentation of evidence to the contrary. (Lim Lao v CA;
6/20/97)

WHEN LACK OF KNOWLEDGE AND LACK OF POWER TO FUND THE CHECKS IN

CASES OF BP 22 A DEFENSE
After a thorough review of the case at bar, the Court finds that Petitioner Lina
Lim Lao did not have actual knowledge of the insufficiency of funds in the

corporate accounts at the time she affixed her signature to the checks
involved in this case, at the time the same were issued, and even at the time
the checks were subsequently dishonored by the drawee bank.
The scope of petitioner's duties and responsibilities did not encompass the
funding of the corporation's checks; her duties were limited to the marketing
department of the Binondo branch. Under the organizational structure of
Premiere Financing Corporation, funding of checks was the sole responsibility
of the Treasury Department. (Lim Lao v CA; 6/20/97

LACK OF ADEQUATE NOTICE OF DISHONOR, A DEFENSE

There can be no prima facie evidence of knowledge of insufficiency of funds
in the instant case because no notice of dishonor was actually sent to or
received by the petitioner.
The notice of dishonor may be sent by the offended party or the drawee
bank. The trial court itself found absent a personal notice of dishonor to
Petitioner Lina Lim Lao by the drawee bank based on the unrebutted
testimony of Ocampo "(t)hat the checks bounced when presented with the
drawee bank but she did not inform anymore the Binondo branch and Lina
Lim Lao as there was no need to inform them as the corporation was in
distress." The Court of Appeals affirmed this factual finding. Pursuant to
prevailing jurisprudence, this finding is binding on this Court. (Lim Lao v CA;
6/20/97)

ANTI-GRAFT & CORRUPT PRACTICES ACT

(RA NO 3019)

ANTI-GRAFT AND CORRUPT PRACTICES ACT

Corrupt practices of public officers.
(a) Persuading, inducing or influencing another public officer to perform an
act constituting a violation of rules and regulations duly promulgated by
competent authority or an offense in connection with the official duties of the
latter, or allowing himself to be persuaded, induced, or influenced to commit

such violation or offense.

(b) Directly or indirectly requesting or receiving any gift, present, share,
percentage, or benefit, for himself or for any other person, in connection with
any contract or transaction between the Government and any other part,
wherein the public officer in his official capacity has to intervene under the
law.
(c) Directly or indirectly requesting or receiving any gift, present or other
pecuniary or material benefit, for himself or for another, from any person for
whom the public officer, in any manner or capacity, has secured or obtained,
or will secure or obtain, any Government permit or license, in consideration
for the help given or to be given, without prejudice to Section thirteen of this
Act.
(d) Accepting or having any member of his family accept employment in a
private enterprise which has pending official business with him during the
pendency thereof or within one year after its termination.
(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or preference
in the discharge of his official administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions.
( f ) Neglecting or refusing, after due demand or request, without sufficient
justification, to act within a reasonable time on any matter pending before
him for the purpose of obtaining, directly or indirectly, from any person
interested in the matter some pecuniary or material benefit or advantage, or
for the purpose of favoring his own interest or giving undue advantage in
favor of or discriminating against any other interested party.
(g) Entering, on behalf of the Government, into any contract or transaction
manifestly and grossly disadvantageous to the same, whether or not the
public officer profited or will profit thereby.
(h) Director or indirectly having financing or pecuniary interest in any
business, contract or transaction in connection with which he intervenes or
takes part in his official capacity, or in which he is prohibited by the

Constitution or by any law from having any interest.

(i) Directly or indirectly becoming interested, for personal gain, or having a
material interest in any transaction or act requiring the approval of a board,
panel or group of which he is a member, and which exercises discretion in
such approval, even if he votes against the same or does not participate in
the action of the board, committee, panel or group.
Interest for personal gain shall be presumed against those public officers
responsible for the approval of manifestly unlawful, inequitable, or irregular
transaction or acts by the board, panel or group to which they belong.
( j) Knowingly approving or granting any license, permit, privilege or benefit
in favor of any person not qualified for or not legally entitled to such license,
permit, privilege or advantage, or of a mere representative or dummy of one
who is not so qualified or entitled.
(k) Divulging valuable information of a confidential character, acquired by his office
or
him on account of his official position to unauthorized persons, or releasing such
information in advance of its authorized release date.

UNEXPLAINED WEALTH, MEANING

Prima facie evidence of and dismissal due to unexplained wealth. If in
accordance with the provisions of RA 1379, a public official has been found to
have acquired during his incumbency, whether in his name or in the name of
other persons, an amount of property and/or money manifestly out of proportion to
his salary and to his other lawful income, that fact shall be a ground for dismissal or
removal.

Note: Unsolicited gifts or presents of small or insignificant value shall be

offered or given as a mere ordinary token of gratitude or friendship according
to local customs or usage shall be exempted from the provision of this act.
MEANING OF CAUSING UNDUE INJURY
The act of giving any private party any unwarranted benefit, advantage or
preference is not an indispensable element of causing any undue injury to
any part, although there may be instances where both elements concur.
(Santiago vs Garchitorena, et al., 2 Dec. 93).

In Mejoroda v Sandiganbayan, the Supreme Court has ruled that the offender
in causing undue injury does not refer only to those who are in charge of
giving permits, licenses or concessions but all acts of public officers or
employees which have caused undue injury to others.

ELEMENTS OF NEGLECT OF DUTY UNDER SEC. 3 OF RA 3019

a. the offender is a public officer;
b. the said officer has neglected or has refused to act without sufficient
justification after due demand or request has been made upon him;
c. reasonable time has elapsed from such demand or request without the
public officer having acted on the matter pending before him;
d. such failure to so act is for the purpose of obtaining directly or indirectly
from any person interested in the matter some pecuniary or material benefit
or advantage in favor of an interested party or discriminating against
another. Coronado v Sandiganbayan.

WHERE PUBLIC OFFICER ACTED WITH MANIFEST PARTIALITY, EVIDENT BAD

FAITH, OR INEXCUSABLE
NEGLIGENCE
Sec. 3. Corrupt practices of public officers. - In addition to acts or omissions
of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to
be unlawful:
xxx xxx xxx
(e). Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or preference
in the discharge of his official administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions.

VIOLATION OF SECTION 3 (E) OF RA 3019 REQUIRES PROOF OF THE

FOLLOWING FACTS, VIZ:
a. the accused is a public officer discharging administrative or official
functions or private persons charged in conspiracy with them;
b. the public officer committed the prohibited act during the performance of
his official duty or in relation to his public position;
c. the public officer acted with manifest partiality evident bad faith or gross,
inexcusable negligence; and
d. his action caused undue injury to the government or any private party, or
gave any party any unwarranted benefit, advantage or preference to such
parties.

CAUSING UNDUE INJURY UNDER SEC. 3, LETTER (e) OF RA 3019. MEANING.

Section 3 enumerates in eleven subsections the corrupt practices of any
public officer declared unlawful. Its reference to any public officer is without
distinction or qualification and it specifies the acts declared unlawful. We
agree with the view adopted by the Solicitor General that the last inclusion of
officers and employees of offices or government corporations which, under
the ordinary concept of public officer may not come within the term. It is a
strained construction of the provision to read it as applying exclusively to
public officers charged with the duty of granting license or permits or other
concessions. (Mejorada v Sandiganbayan, 151 SCRA 399).

SUSPENSION UNDER R.A. 3019 MANDATORY BUT COURTS ARE ALLOWED TO

DETERMINE
WHETHER INFORMATION IS VALID OR NOT
It is well settled that Section 13 of RA 3019 makes it mandatory for the
Sandiganbayan (or the Court) to suspend any public officer against whom a
valid information charging violation of this law, Book II, Title 7 of the RPC, or
any offense involving fraud upon government or public funds or property is
filed in court. The court trying a case has neither discretion nor duty to
determine whether preventive suspension is required to prevent the accused

from using his office to intimidate witnesses or frustrate his prosecution or

continue committing malfeasance in office. All that is required is for the court
to make a finding that the accused stands charged under a valid information
for any of the above-described crimes for the purpose of granting or denying
the sought for suspension. (Bolastig vs. Sandiganbayan, G.R. No. 110503
[August 4, 1994], 235 SCRA 103).In the same case, the Court held that "as
applied to criminal prosecutions under RA 3019, preventive suspension will
last for less than ninety (90) days only if the case is decided within that
period; otherwise, it will continue for ninety (90) days." (Conducto v. Monzon;
A.M. No. MTJ-98-1147, July 2, 1998)

PUBLIC OFFICER MAY BE SUSPENDED FROM HIS PRESENT POSITION EVEN IF

THE CRIME WHICH HE IS BEING CHARGED WAS COMMITTED DURING HIS
PREVIOUS TERM
Judge Monzon's contention denying complainant's Motion for Suspension
because "offenses committed during the previous term (is) not a cause for
removal during the present term" is untenable. In the case of Rodolfo E.
Aguinaldo vs. Hon. Luis Santos and Melvin Vargas, 212 SCRA 768, the Court
held that "the rule is that a public official cannot be removed for
administrative misconduct committed during a prior term since his reelection to office operates as a condonation of the officer's previous
misconduct committed during a prior term, to the extent of cutting off the
right to remove him therefor. The foregoing rule, however, finds no
application to criminal cases . . ."
Likewise, it was specifically declared in the case of Ingco vs. Sanchez, G.R.
No. L-23220, 18 December 1967, 21 SCRA 1292, that "The ruling, therefore,
that 'when the people have elected a man to office it must be assumed that
they did this with knowledge of his life and character and that they
disregarded or forgave his faults or misconduct if he had been guilty of any'
refers only to an action for removal from office and does not apply to a
criminal case"
Clearly, even if the alleged unlawful appointment was committed during
Maghirang's first term as barangay chairman and the Motion for his
suspension was only filed in 1995 during his second term, his re-election is
not a bar to his suspension as the suspension sought for is in connection with
a criminal case. (Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

RE-ELECTION IN PUBLIC OFFICE EXTINGUISHING ONLY HIS ADMINISTRATIVE

LIABILITY BUT
NOT HIS CRIMINAL LIABILITY
As early as 18 December 1967 in Ingco v. Sanchez, 17 this Court explicitly
ruled that the re-election of a public official extinguishes only the
administrative, but not the criminal, liability incurred by him during his
previous term of office, thus:
The ruling, therefore, that "when the people have elected a man to his
office it must be assumed that they did this with knowledge of his life and
character and that they disregarded or forgave his faults or misconduct if he
had been guilty of any" refers only to an action for removal from office and
does not apply to criminal case, because a crime is a public wrong more
atrocious in character than mere misfeasance or malfeasance committed by
a public officer in the discharge of his duties, and is injurious not only to a
person or group of persons but to the State as a whole. This must be the
reason why Article 89 of the Revised Penal Code, which enumerates the
grounds for extinction of criminal liability, does not include reelection to
office as one of them, at least insofar as a public officer is concerned. Also,
under the Constitution, it is only the President who may grant the pardon of a
criminal offense. (Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998)

PRE-CONDITION OF SUSPENSION (PREVENTIVE) UNDER SEC. 13, RA 3019

It is mandatory for the court to place under preventive suspension a public
officer accused before it. Imposition of suspension, however, is not automatic
or self-operative. A pre-condition thereof is the existence of a valid
information, determined at a pre-suspension hearing. Such a hearing is in
accord with the spirit of the law, considering the serious and far-reaching
consequences of a suspension of a public official even before his conviction,
and the demands of public interest for a speedy determination of the issues
involved in the case. The purpose of the pre-suspension hearing is basically
to determine the validity of the information and thereby furnish the court
with a basis to either suspend the accused and proceed with the trial on the
merits of the case, or refuse suspension of the latter and dismiss the case, or
correct any part of the proceeding which impairs its validity. The accused
should be given adequate opportunity to challenge the validity or regularity

of the criminal proceedings against him; e.g. that he has not been afforded
the right to due preliminary investigation; that the acts imputed to him do
not constitute a specific crime (under R.A. 3019 or the Revised Penal Code)
warranting his mandatory suspension from office under Section 13 of the Act;
or that the information is subject to quashal on any of the grounds set out in
Rule 117 of the Rules of Court. But once a proper determination of the
validity of the information has been made, it becomes the ministerial duty of
the court to forthwith issue the order of preventive suspension. The court has
no discretion, for instance, to hold in abeyance the suspension of the
accused official on the pretext that the order denying the latter's motion to
quash is pending review before the appellate courts. (Segovia v.
Sandiganbayan; GR 124067, Mar. 27, 1998)
GUIDELINES TO BE FOLLOWED IN PREVENTIVE SUSPENSION CASES
"In the leading case of Luciano, et al. vs. Mariano, et al. (L-32950, July 30,
1971, 40 SCRA 187), we have set out the guidelines to be followed by the
lower courts in the exercise of the power of suspension under Section 13 of
the law, to wit:
(c) By way of broad guidelines for the lower courts in the exercise of the
power of suspension from office of public officers charged under a valid
information under the provisions of Republic Act No. 3019 or under the
provisions of the Revised Penal Code on bribery, pursuant to section 13 of
said Act, it may be briefly stated that upon the filing of such information, the
trial court should issue an order with proper notice requiring the accused
officer to show cause at a specific date of hearing why he should not be
ordered suspended from office pursuant to the cited mandatory provisions of
the Act. Where either the prosecution seasonably files a motion for an order
of suspension or the accused in turn files a motion to quash the information
or challenges the validity thereof, such show-cause order of the trial court
would no longer be necessary. What is indispensable is that the trial court
duly hear the parties at a hearing held for determining the validity of the
information, and thereafter hand down its ruling, issuing the corresponding
order of suspension should it uphold the validity of the information or
withhold such suspension in the contrary case.
(d) No specific rules need be laid down for such pre-suspension hearing.
Suffice it to state that the accused should be given a fair and adequate
opportunity to challenge the validity of the criminal proceedings against him,

e.g., that he has not been afforded the right of due preliminary investigation,
the act for which he stands charged do not constitute a violation of the
provisions of Republic Act No. 3019 or of the bribery provisions of the
Revised Penal Code which would warrant his mandatory suspension from
office under Section 13 of the Act, or he may present a motion to quash the
information on any of the grounds provided in Rule 117 of the Rules of Court.
The mandatory suspension decreed by the act upon determination of the
pendency in court or a criminal prosecution for violation of the Anti-Graft Act
or for bribery under a valid information requires at the same time that the
hearing be expeditious, and not unduly protracted such as to thwart the
prompt suspension envisioned by the Act. Hence, if the trial court, say, finds
the ground alleged in the quashal motion not to be indubitable, then it shall
be called upon to issue the suspension order upon its upholding the validity
of the information and setting the same for trial on the merits.' (Segovia v.
Sandiganbayan)

WHEN MAY A PUBLIC OFFICER BE LIABLE FOR CAUSING UNDUE INJURY

UNDER SEC. 3(e) of RA 3019
xxx xxx xxx
(c) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or preference
in the discharge of his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions."
To hold a person liable under this section, the concurrence of the following
elements must be established beyond reasonable doubt by the prosecution:
"(1) That the accused is a public officer or a private person charged in
conspiracy with the former;
(2) That said public officer commits the prohibited acts during the
performance of his or her official duties or in relation to his or her public
positions;
(3) That he or she causes undue injury to any party, whether the government
or a private party; and

(4) That the public officer has acted with manifest partiality, evident bad
faith or gross inexcusable negligence." (Llorente v. Sandiganbayan; GR
122166, Mar. 11, 1998)

MEANING OF BAD FAITH UNDER SECTION 3(e) OF RA 3019

"Bad faith does not simply connote bad judgment or negligence; it imputes a
dishonest purpose or some moral obliquity and conscious doing of a wrong; a
breach of sworn duty through some motive or intent or ill will; it partakes of
the nature of fraud. (Spiegel v Beacon Participations, 8 NE 2nd Series 895,
1007). It contemplates a state of mind affirmatively operating with furtive
design or some motive of self interest or ill will for ulterior purposes (Air
France v. Carrascoso, 18 SCRA 155, 166-167). Evident bad faith connotes a
manifest deliberate intent on the part of the accused to do wrong or cause
damage."
In Jacinto, evident bad faith was not appreciated because the actions taken
by the accused were not entirely without rhyme or reason; he refused to
release the complainant's salary because the latter failed to submit her daily
time record; he refused to approve her sick-leave application because he
found out that she did not suffer any illness; and he removed her name from
the plantilla because she was moonlighting during office hours. Such actions
were measures taken by a superior against an erring employee who
studiously ignored, if not defied, his authority. (Llorente v. Sandiganbayan)
WHEN OFFENDER IS NOT LIABLE UNDER SEC. 3(e) BUT UNDER SEC. (f) OF RA
3019
It would appear that petitioner's failure or refusal to act on the complainant's
vouchers, or the delay in his acting on them more properly falls under Sec.
3[f]:
"(f) Neglecting or refusing, after due demand or request, without sufficient
justification, to act within a reasonable time on any matter pending before
him for the purpose of obtaining, directly or indirectly, from any person
interested in the matter some pecuniary or material benefit or advantage, or
for purpose of favoring his own interest or giving undue advantage in favor
of or discriminating against any other interested party."

Here, the neglect or refusal to act within a reasonable time is the criminal
act, not the causing of undue injury. Thus, its elements are:
"1) The offender is a public officer;
2) Said officer has neglected or has refused to act without sufficient
justification after due demand or request has been made on him;
3) Reasonable time has elapsed from such demand or request without the
public officer having acted on the matter pending before him; and
4) Such failure to so act is 'for the purpose of obtaining, directly or indirectly,
from any person interested in the matter some pecuniary or material benefit
or advantage in favor of an interested party, or discriminating against
another."
However, petitioner is not charged with a violation of Sec. 3[f]. Hence,
further disquisition is not proper. Neither may this Court convict petitioner
under Sec. 3[f] without violating his constitutional right to due process.
(Llorente v. Sandiganbayan)
SUSPPENSION (PREVENTIVE) OF LOCAL OFFICIALS SHALL ONLY BE FOR 60
DAYS
On the other hand, we find merit in petitioner's second assigned error. The
Sandiganbayan erred in imposing a 90 day suspension upon petitioner for
the single case filed against him. Under Section 63 (b) of the Local
Government Code, "any single preventive suspension of local elective
officials shall not extend beyond sixty (60) days." (Rios v. Sandiganbayan; GR
129913, Set. 26, 1997)

APPROVAL OF LEAVE OF ABSENCE NOT A BAR TO SUSPENSION

Since the petitioner is an incumbent public official charged in a valid
information with an offense punishable under the Constitution and the laws
(RA 3019 and PD 807), the law's command that he "shall be suspended from
office" pendente lite must be obeyed. His approved leave of absence is not a
bar to his preventive suspension for as indicated by the Solicitor General, an
approved leave, whether it be for a fixed or indefinite period, may be
cancelled or shortened at will by the incumbent. (Doromal v. Sandiganbayan;
GR 85468, Sepr. 7, 1989)

UNDUE DELAY IN PRELIMINARY INVESTIGATIONS VIOLATIVE OF DUE PROCESS

AND A GROUND TO DISMISS
After a careful review of the facts and circumstances of this case, we are
constrained to hold that the inordinate delay in terminating the preliminary
investigation and filing the information in the instant case is violative of the
constitutionally guaranteed right of the petitioner to due process and to a
speedy disposition of the cases against him. Accordingly, the informations in
Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be
dismissed. In view of the foregoing, we find it unnecessary to rule on the
other issues raised by petitioner. (Tatad v. Sandiganbayan)

DEATH PENALTY LAW

(RA 7659)

PROSTITUTES CAN BE A VICTIM OF RAPE

As to the suggestion that ANALIZA was a prostitute, that alone, even if it be
conceded, cannot absolve him of his liability for rape. First, prostitutes can be
victims of rape. (People v. Alfeche)

REASON WHY DWELLING IS AN AGGRAVATING CIRCUMSTANCE

Dwelling is considered an aggravating circumstance because primarily of the
sanctity of privacy the law accords to human abode. The dwelling need not
be owned by the victim. Thus, in People v. Basa, dwelling was appreciated,
although the victims were killed while sleeping as guests in the house of
another. As aptly stated in People v. Balansit: "[O]ne does not lose his right of
privacy where he is offended in the house of another because as [an] invited
guest [or a housemaid as in the instant case], he, the stranger, is sheltered
by the same roof and protected by the same intimacy of life it affords. It may
not be his house, but it is, even for a brief moment, "home" to him. He is
entitled to respect even for that short moment." (People v. Alfeche)

WHEN RELATIONSHIP IS NOT AN ALTERNATIVE CIRCUMSTANCE UNDER ART.

15 OF THE RPC
Clearly then, the father-daughter relationship in rape cases, or between
accused and Relanne, in this case, has been treated by Congress in the
nature of a special circumstance which makes the imposition of the death
penalty mandatory. Hence, relationship as an alternative circumstance under
Article 15 of the Revised Penal Code, appreciated as an aggravating
circumstance, should no longer be applied in view of the amendments
introduced by R.A. No. 7659. It may be pointed, however, that without the
foregoing amendment, relationship would still be an aggravating
circumstance in the crimes of rape (Article 335) and acts of lasciviousness
(Article 336). 57
If relationship in the instant case were to be appreciated under Article 15 of
the Revised Penal Code, the penalty imposable on accused then would not
be death, but merely reclusion perpetua for, assuming that Relanne's
testimony in court would have confirmed what she narrated in her sworn
statement (Exhibit "C"), no circumstance then attended the commission of
the rape which could bring the crime under any provision of Article 335
which imposes a penalty higher than reclusion perpetua or of reclusion
perpetua to death. (People v. Manyuhod, Jr.)

WHEN OFFENDER IS STEP GRANDPARENT, HE IS NOT CONSIDERED AN

ASCENDANT UNDER RA 8353 AND RA 7659
The trial court has thus held incorrectly in considering appellant, who is
legally married to Roxan's natural grandmother, as among those named in
the enumeration. Appellant is merely a step-grandparent who obviously is
neither an "ascendant" nor a "step-parent" of the victim. In the recent case
of People vs. Atop, 24 the Court rejected the application of the mandatory
death penalty to the rape of a 12-year old victim by the common-law
husband of the girl's grandmother. The Court said:
"It is a basic rule of statutory construction that penal statutes are to be
liberally construed in favor of the accused. Court's must not bring cases
within the provision of a law which are not clearly embraced by it. No act can
be pronounced criminal which is not clearly made so by statute; so, too, no
person who is not clearly within the terms of a statute can be brought within

them. Any reasonable doubt must be resolved in favor of the accused."

(People v. Deleverio)

RECLUSION PERPETUA IS LIGHTER THAN LIFE IMPRISONMENT AND IF ONE IS

SENTENCED TO LIFE IMPRISONMENT AND LATER IMPOSED RECLUSION
PERPETUA TO SAME OFFENSE, THE PENALTY THAT SHOULD BE IMPOSED IS
RECLUSION PERPETUA
Since reclusion perpetua is a lighter penalty than life imprisonment, and
considering the rule that criminal statutes with a favorable effect upon the
accused have, as to him, a retroactive effect, the penalty imposable upon the
accused should be reclusion perpetua and not life imprisonment.
(People v. Latura)

JUSTIFICATION FOR THE IMPOSITION OF THE DEATH PENALTY

Although its origins seem lost in obscurity, the imposition of death as
punishment for violation of law or custom, religious or secular, is an ancient
practice. We do know that our forefathers killed to avenge themselves and
their kin and that initially, the criminal law was used to compensate for a
wrong done to a private party or his family, not to punish in the name of the
state.
The dawning of civilization brought with it both the increasing sensitization
throughout the later generations against past barbarity and the
institutionalization of state power under the rule of law. Today every man or
woman is both an individual person with inherent human rights recognized
and protected by the state and a citizen with the duty to serve the common
weal and defend and preserve society.
One of the indispensable powers of the state is the power to secure society
against threatened and actual evil. Pursuant to this, the legislative arm of
government enacts criminal laws that define and punish illegal acts that may
be committed by its own subjects, the executive agencies enforce these
laws, and the judiciary tries and sentences the criminals in accordance with
these laws.
Although penologists, throughout history, have not stopped debating on the

causes of criminal behavior and the purposes of criminal punishment, our

criminal laws have been perceived as relatively stable and functional since
the enforcement of the Revised Penal Code on January 1, 1932, this
notwithstanding occasional opposition to the death penalty provisions
therein. The Revised Penal Code, as it was originally promulgated, provided
for the death penalty in specified crimes under specific circumstances. As
early as 1886, though, capital punishment had entered our legal system
through the old Penal Code, which was a modified version of the Spanish
Penal Code of 1870. (People v. Echegaray)

WHY DEATH PENALTY IS NOT A CRUEL AND UNUSUAL PUNISHMENT

"The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte
Kemmler, 136 U.S., 436, the United States Supreme Court said that
'punishments are cruel when they involve torture or a lingering death, but
the punishment of death is not cruel, within the meaning of that word as
used in the constitution. It implies there something inhuman and barbarous,
something more than the mere extinguishment of life.'"
as long as that penalty remains in the statute books, and as long as our
criminal law provides for its imposition in certain cases, it is the duty of
judicial officers to respect and apply the law regardless of their private
opinions," and this we have reiterated in the 1995 case of People v.
Veneracion. (People v. Echegaray)

DEATH PENALTY WAS NOT ABOLISHED BUT MERELY SUSPENDED

A reading of Section 19 (1) of Article III will readily show that there is really
nothing therein which expressly declares the abolition of the death penalty.
The provision merely says that the death penalty shall not be imposed unless
for compelling reasons involving heinous crimes the Congress hereafter
provides for it and, if already imposed, shall be reduced to reclusion
perpetua. The language, while rather awkward, is still plain enough". (People
v. Echegaray)

DEFINITION OF HEINOUS CRIMES

". . . the crimes punishable by death under this Act are heinous for being
grievous, odious and hateful offenses and which, by reason of their inherent
or manifest wickedness, viciousness, atrocity and perversity are repugnant
and outrageous to the common standards and norms of decency and
morality in a just, civilized and ordered society." (People v. Echegaray)

WHAT ARE THE CRIMES PUNISHABLE BY RECLUSION PERPETUA TO DEATH

UNDER RA 7659
Under R.A. No. 7659, the following crimes are penalized by reclusion
perpetua to death:
(1) Treason (Sec. 2);
(2) Qualified piracy (Sec. 3);
(3) Parricide (Sec. 5);
(4) Murder (Sec. 6);
(5) Infanticide (Sec. 7);
(6) Kidnapping and serious illegal detention if attended by any of the
following four circumstances: (a) the victim was detained for more than three
days; (b) it was committed simulating public authority; (c) serious physical
injuries were inflicted on the victim or threats to kill him were made; and (d)
if the victim is a minor, except when the accused is any of the parents,
female or a public officer (Sec. 8);
(7) Robbery with homicide, rape or intentional mutilation (Sec. 9);
(8) Destructive arson if what is burned is (a) one or more buildings or edifice;
(b) a building where people usually gather; (c) a train, ship or airplane for
public use; (d) a building or factory in the service of public utilities; (e) a
building for the purpose of concealing or destroying evidence Or a crime; (f)
an arsenal, fireworks factory, or government museum; and (g) a storehouse
or factory of explosive materials located in an inhabited place; or regardless
of what is burned, if the arson is perpetrated by two or more persons (Sec.
10);
(9) Rape attended by any of the following circumstances: (a) the rape is
committed with a deadly weapon; (b) the rape is committed by two or more
persons; and (c) the rape is attempted or frustrated and committed with
homicide (Sec. 11);
(10) Plunder involving at least P50 million (Sec. 12);
(11) Importation of prohibited drugs
(Sec. 13);

(12) Sale, administration, delivery, distribution, and transportation of

prohibited drugs (id.);
(13) Maintenance of den, dive or resort for users of prohibited drugs (id.);
(14) Manufacture of prohibited drugs (id.);
(15) Possession or use of prohibited drugs in certain specified amounts (id.);
(16) Cultivation of plants which are sources of prohibited drugs (id.)
(17) Importation of regulated drugs
(Sec. 14);
(18) Manufacture of regulated drugs (id.);
(19) Sale, administration, dispensation, delivery, transportation, and
distribution of regulated drugs (id.);
(20) Maintenance of den, dive, or resort for users of regulated drugs (Sec.
15);
(21) Possession or use of regulated drugs in specified amounts (Sec. 16);
(22) Misappropriation, misapplication or failure to account dangerous drugs
confiscated by the arresting officer (Sec. 17);
(23) Planting evidence of dangerous drugs in person or immediate vicinity of
another to implicate the latter (Sec. 19); and
(24) Carnapping where the owner, driver or occupant of the carnapped motor
vehicle is killed or raped (Sec. 20).
(People v. Echegaray)

WHAT ARE THE MANDATORY CRIMES PUNISHABLE BY MANDATORY DEATH

PENALTY UNDER RA 7659
On the other hand, under R.A. No. 7659, the mandatory penalty of death is
imposed in the following crimes:
(1) Qualified bribery
"If any public officer is entrusted with law enforcement and he refrains from
arresting or prosecuting an offender who has committed a crime punishable
by reclusion perpetua and/or death in consideration of any offer, promise,
gift or present, he shall suffer the penalty for the offense which was not
prosecuted.
If it is the public officer who asks or demands such gift or present, he shall
suffer the penalty of death." (Sec. 4)
(2) Kidnapping and serious illegal detention for ransom resulting in the death

of the victim or the victim is raped, tortured or subjected to dehumanizing

acts
"The penalty shall be death where the kidnapping or detention was
committed for the purpose of ransom from the victim or any other person,
even if none of the circumstances above-mentioned were present in the
commission of the offense.
When the victim is killed or dies as a consequence of the detention or is
raped, or is subject to torture or dehumanizing acts, the maximum penalty
[of death] shall be imposed." (Sec. 8)
(3) Destructive arson resulting in death
"If as a consequence of the commission of any of the acts penalized under
this Article, death results, the mandatory penalty of death shall be imposed."
(Sec. 10)
(4) Rape with the victim becoming insane, rape with homicide and qualified
"When by reason or on the occasion of the rape, the victim has become
insane, the penalty shall be death.
xxx xxx xxx
When by reason or on the occasion of the rape, a homicide is committed, the
penalty shall be death.
The death penalty shall also be imposed if the crime of rape is committed
with any of the following attendant circumstances:
1. when the victim is under eighteen (18) years of age and the offender is a
parent, ascendant, step-parent, guardian, relative by consanguinity or
affinity within the third civil degree, or the common-law spouse of the parent
or the victim.
2. when the victim is under the custody of the police or military authorities.
3. when the rape is committed in full view of the husband, parent, any of the
children or other relatives within the third degree of consanguinity.
4. when the victim is a religious or a child below seven (7) years old
5. when the offender knows that he is afflicted with Acquired Immune
Deficiency Syndrome (AIDS) disease.

6. when committed by any member of the Armed Forces of the Philippines or

the Philippine National Police or any law enforcement agency.
7. when by reason or on the occasion of the rape, the victim has suffered
permanent physical mutilation." (Sec. 11 )
(5) Sale, administration, delivery, distribution and transportation of
prohibited drugs where the victim is a minor or the victim dies
"Notwithstanding the provision of Section 20 of this Act to the contrary, if the
victim of the offense is a minor, or should a prohibited drug involved in any
offense under this Section be the proximate cause of the death of victim
thereof, the maximum penalty [of death] herein provided shall be imposed."
(Sec. 13)
(6) Maintenance of den, dive, or resort for users of prohibited drugs where
the victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, the
maximum of the penalty [of death] shall be imposed in every case where a
prohibited drug is administered, delivered or sold to a minor who is allowed
to use the same in such place.
Should a prohibited drug be the proximate case of the death of a person
using the same in such den, dive or resort, the maximum penalty herein
provided shall be imposed on the maintainer notwithstanding the provisions
of Section 20 of this Act to the contrary." (Sec. 13)
(7) Sale, administration, dispensation, delivery, distribution and
transportation of regulated drugs where the victim is a minor or the victim
dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, if
the victim of the offense is a minor, or should a regulated drug involved in
any offense under this Section be the proximate cause of the death of a
victim thereof, the maximum penalty [of death] herein provided shall be
imposed." (Sec. 14)
(8) Maintenance of den, dive, or resort for users of regulated drugs where the
victim is a minor or the victim dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, the

maximum penalty [of death] herein provided shall be imposed in every case
where a regulated drug is administered, delivered or sold to a minor who is
allowed to use the same in such place.
Should a regulated drug be the proximate cause of death of a person using
the same in such den, dive or resort, the maximum penalty herein provided
shall be imposed on the maintainer notwithstanding the provisions of Section
20 of this Act to the contrary." (Sec. 15)
(9) Drug offenses if convicted are government officials, employees or officers
including members of police agencies and armed forces
"The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1), 6,
7, 8, 9, 11,12 and 13 of Article II and Sections 14, 14-A, 14(1), 15A (1), 16,
and 19 of Article III [of the Dangerous Drugs Act of 1972] shall be imposed, if
those found guilty or any of the same offenses are government officials,
employees or officers including members of police agencies and the armed
forces." (Sec. 19)
(10) Planting of dangerous drugs as evidence in drug offenses with the
mandatory death penalty if convicted are government officials, employees or
officers
"Any such above government official, employee or officer who is found guilty
of 'planting' any dangerous drugs punished in Section s 3, 4, 7, 8, 9 and 13 of
Article II and Sections 14, 14-A, 15, and 16 of Article III (of the Dangerous
Drugs Act of 1972) in the person or in the immediate vicinity of another as
evidence to implicate the latter, shall suffer the same penalty as therein
provided." (Sec. 19)
(11) In all the crimes in RA. No. 7659 in their qualified form
"When in the commission of the crime, advantage was taken by the offender
of his public position, the penalty to be imposed shall be in its maximum [of
death] regardless of mitigating circumstances.
The maximum penalty [of death] shall be imposed if the offense was
committed by any person who belongs to an organized/syndicated crime
group.
An organized/syndicated crime group means a group of two or more persons
collaborating, confederating or mutually helping one another for purposes of

gain in the commission of any crime." (Sec. 23)

(People v. Echegaray)

TWO INSTANCES WHEN DEATH MAY BE IMPOSED WHEN CONSTRUED UNDER

RA 7659
Thus, construing R.A. No. 7659 in pari materia with the Revised Penal Code,
death may be imposed when (1) aggravating circumstances attend the
commission of the crime as to make operative the provision of the Revised
Penal Code regarding the imposition of the maximum penalty; and (2) other
circumstances attend the commission of the crime which indubitably
characterize the same as heinous in contemplation of R.A. No. 7659 that
justify the imposition of the death, albeit the imposable penalty is reclusion
perpetua to death. (People v. Echegaray)

WHY DEATH PENALTY IS IMPOSED ON HEINOUS CRIMES

The death penalty is imposed in heinous crimes because the perpetrators
thereof have committed unforgivably execrable acts that have so deeply
dehumanized a person or criminal acts with severely destructive effects on
the national efforts to lift the masses from abject poverty through organized
governmental strategies based on a disciplined and honest citizenry, and
because they have so caused irreparable and substantial injury to both their
victim and the society and a repetition of their acts would pose actual threat
to the safety of individuals and the survival of government, they must be
permanently prevented from doing so. At any rate, this court has no doubts
as to the innate heinousness of the crime of rape, as we have held in the
case of People v. Cristobal. (People v. Echegaray)

WHY RAPE IS A HEINOUS CRIME

"Rape is the forcible violation of the sexual intimacy of another person. It
does injury to justice and charity. Rape deeply wounds the respect, freedom,
and physical and moral integrity to which every person has a right. It causes
grave damage that can mark the victim for life. It is always an intrinsically
evil act . . . an outrage upon decency and dignity that hurts not only the
victim but the society itself." (People v. Echegaray)

WHY CAPITAL PUNISHMENT SHOULD NOT BE ABOLISHED

"Capital punishment ought not to be abolished solely because it is
substantially repulsive, if infinitely less repulsive than the acts which invoke
it. Yet the mounting zeal for its abolition seems to arise from a
sentimentalized hyperfastidiousness that seeks to expunge from the society
all that appears harsh and suppressive. If we are to preserve the humane
society we will have to retain sufficient strength of character and will to do
the unpleasant in order that tranquillity and civility may rule
comprehensively. It seems very likely that capital punishment is a . . .
necessary, if limited factor in that maintenance of social tranquillity and
ought to be retained on this ground. To do otherwise is to indulge in the
luxury of permitting a sense of false delicacy to reign over the necessity of
social survival." (People v. Echegaray)

RA 6425 AS AMENDED BY RA 7659 WHEN PENALTY IN NEW LAW NOT

FAVORABLE TO ACCUSED IT SHOULD BE RETAINED
Appellant in this case was convicted and meted the penalty of life
imprisonment and fine of twenty thousand pesos under RA 6425 for
transporting more or less 6 kilos of marijuana on July 1990. RA 7659, which
took effect on December 31/93, amended the provisions of RA 6425,
increasing the imposable penalty for the sale or transport of 750 grams or
more of marijuana to reclusion perpetua to death and a fine ranging from
five hundred thousand pesos to ten million pesos. Such penalty is not
favorable to the appellant as it carries the accessory penalties provided
under the RPC and has a higher amount of fine which in accordance with ART
22 of the same code should not be given retroactive effect. The court,
therefore, finds and so holds that the penalty of life imprisonment and fine in
the amount of twenty thousand pesos correctly imposed by the trial court
should be retained. (PP v Carreon, 12/9/97)
COURTS SHOULD NOT BE CONCERNED ABOUT WISDOM, EFFICACY OR
MORALITY OF LAWS
It is a well settled rule that the courts are not concerned with the wisdom,
efficacy or morality of laws. That question falls exclusively within the

province of the Legislature which enacts them and the Chief Executive who
approves or vetoes them. The only function of the judiciary is to interpret the
laws and, if not in disharmony with the Constitution, to apply them. And for
the guidance of the members of the judiciary we feel it incumbent upon us to
state that while they as citizens or as judges may regard a certain law as
harsh, unwise or morally wrong, and may recommend to the authority or
department concerned, its amendment, modification, or repeal, still, as long
as said law is in force, they must apply it and give it effect as decreed by the
law-making body. (People v. Veneracion)
REASON FOR DURATION OF RECLUSION PERPETUA OF 30 OR 40 YEARS
The imputed duration of thirty (30) years for reclusion perpetua, therefore, is
only to serve as the basis for determining the convict's eligibility for pardon
or for the application of the three-fold rule in the service of multiple
penalties. (People v. Lucas)
ROBBERY WITH HOMICIDE, NUMBER OF PERSONS KILLED DOES NOT ALTER
CHARACTERIZATION OF THE OFFENSE BUT CAN BE APPRECIATED AS
AGGRAVATING CIRCUMSTANCE.
While the number of persons killed does not alter the characterization of the
offense as robbery with homicide, the multiplicity of the victims slain should
have been appreciated as an aggravating circumstance. This would preclude
an anomalous situation where, from the standpoint of the gravity of the
offense, robbery with one killing would be treated in the same way that
robbery with multiple killings would be. (People V. Timple)

ROBBERY WITH HOMICIDE AND ROBBERY WITH RAPE; PROVISION OF ARTICLE

294 OF THE REVISED PENAL CODE AS AMENDED BY REPUBLIC ACT 7659
CANNOT BE APPLIED RETROACTIVELY; CASE AT BAR.

Under Article 294 (1) of the Revised Penal Code, robbery with homicide is
punishable by reclusion perpetua to death. In view, however, of the first
paragraph of Section 19, Article III of the 1987 Constitution, which provides
that: "Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading
or inhuman punishment inflicted. Neither shall death penalty be imposed,
unless, for compelling reasons involving heinous crimes, the Congress

hereafter provides for it. Any death penalty already imposed shall be reduced
to reclusion perpetua" (Emphasis supplied) only the penalty of reclusion
perpetua could be imposed by the trial court. Hence, the attended
aggravating circumstances in this case had no impact upon the
determination of the proper penalty by the trial court. By Republic Act No.
7659 (effective 31 December 1993), Congress re-imposed the death penalty
for certain heinous crimes, including robbery with homicide and robbery with
rape. By the same statute, Article 294 of the Revised Penal Code was
amended to read as follows: "Any person guilty of robbery with the use of
violence against or intimidation on any person shall suffer: 1. The penalty of
reclusion perpetua to death, when by reason or on occasion of the robbery,
the crime of homicide shall have been committed, or when the robbery shall
have been accompanied by rape or intentional mutilation or arson. . . .
(Emphasis supplied) Article 294 of the Revised Penal Code, as amended by
R.A. No. 7659, however, cannot be applied retroactively in this case. To do so
would be to subject the appellant to the death penalty which could not have
been constitutionally imposed by the court a quo under the law in effect at
the time of the commission of the offenses. (People v. Timple)

A PERSON MAY BE CONVICTED OF GRAVE COERCION ALTHOUGH THE

CHARGE IS KIDNAPPING
The Information, dated March 24, 1992, filed against Astorga contains
sufficient allegations constituting grave coercion, the elements of which were
sufficiently proved by the prosecution. Hence, a conviction for said crime is
appropriate under Section 4, Rule 120 of the 1988 Rules on Criminal
Procedure.
(People -vs- Astorga)
ELEMENTS OF GRAVE COERCION
Grave Coercion or coaccion grave has three elements:
a. That any person is prevented by another from doing something not
prohibited by law, or compelled to do something against his or her will, be it
right or wrong;
b. That the prevention or compulsion is effected by violence, either by
material force or such a display of it as would produce intimidation and,

consequently, control over the will of the offended party; and

c. that the person who restrains the will and liberty of another has no right to
do so or, in other words, that the restraint is not made under authority of a
law or in the exercise of any lawful right.
(People -vs- Astorga)
ACTUAL DETENTION OR LOCKING UP, AN ESSENTIAL ELEMENT OF
KIDNAPPING
Actual detention or "locking up" is the primary element of kidnapping. If the
evidence does not adequately prove this element, the accused cannot be
held liable for kidnapping. In the present case, the prosecution merely
proved that appellant forcibly dragged the victim toward a place only he
knew. There being no actual detention or confinement, the appellant may be
convicted only of grave coercion.
(People -vs- Astorga; GGR 110097, December 22, 1997)

DANGEROUS DRUGS ACT OF 1972 (R.A. NO. 6425); SECTIONS 15 AND 20

THEREOF AS AMENDED BY R.A. NO. 7659.
In People vs. Martin Simon y Sunga, (G.R. No. 93028), decided on 29 July
1994, this Court ruled as follows: (1) Provisions of R.A. No. 7659 which are
favorable to the accused shall be given retroactive effect pursuant to Article
22 of the Revised Penal Code. (2) Where the quantity of the dangerous drug
involved is less than the quantities stated in the first paragraph of Section 20
of R.A. No. 6425, the penalty to be imposed shall range from prision
correccional to reclusion temporal, and not reclusion perpetua. The reason is
that there is an overlapping error, probably through oversight in the drafting,
in the provisions on the penalty of reclusion perpetua as shown by its dual
imposition, i.e., as the minimum of the penalty where the quantity of the
dangerous drugs involved is more than those specified in the first paragraph
of the amended Section 20 and also as the maximum of the penalty where
the quantity of the dangerous drugs involved is less than those so specified
in the first paragraph. (3) Considering that the aforesaid penalty of prision
correccional to reclusion temporal shall depend upon the quantity of the
dangerous drugs involved, each of the component penalties thereof

prision correccional, prision mayor, and reclusion temporal shall be

considered as a principal imposable penalty depending on the quantity, such
that the quantity of the drugs enumerated in the second paragraph should
then be divided into three, with the resulting quotient, and double or treble
the same, as the bases for determining the appropriate component penalty.
(4) The modifying circumstances in the Revised Penal Code may be
appreciated to determine the proper period of the corresponding imposable
penalty or even to effect its reduction by one or more degrees; provided,
however, that in no case should such graduation of penalties reduce the
imposable penalty lower than prision correccional. (5) In appropriate
instances, the Indeterminate Sentence Law shall be applied and considering
that R.A. No. 7659 has unqualifiedly adopted the penalties under the Revised
Penal Code with their technical signification and effects, then the crimes
under the Dangerous Drugs Act shall now be considered as crimes punished
by the Revised Penal Code; hence, pursuant to Section 1 of the
Indeterminate Sentence Law, the indeterminate penalty which may be
imposed shall be one whose maximum shall be within the range of the
imposable penalty and whose minimum shall be within the range of the
penalty next lower in degree to the imposable penalty. With the foregoing as
our touchstones, and it appearing that the quantity of the shabu recovered
from the accused in this case is only 0.0958 gram, the imposable penalty
under the second paragraph of Section 20 of R.A. No. 6425, as further
amended by Section 17 of R.A. No. 7659, should be prision correccional.
Applying the Indeterminate Sentence Law, the accused may then be
sentenced to suffer an indeterminate penalty ranging from six (6) months of
arresto mayor as minimum to six (6) years of prision correccional as
maximum.
WHEN THEFT OF MOTOR VEHICLE IS QUALIFIED THEFT. (STRAY DECISION)
In this case, the stolen property is a Yamaha RS motorcycle bearing plate no.
CZ-2932 with sidecar valued at P30,000.00. Since this value remains
undisputed, we accept this amount for the purpose of determining the
imposable penalty. In simple theft, such amount carries the corresponding
penalty of prision mayor in its minimum and medium periods to be imposed
in the maximum period. Considering that the penalty for qualified theft is two
degrees higher than that provided for simple theft, the penalty of prision
mayor in its minimum and medium periods must be raised by two degrees.
Thus, the penalty prescribed for the offense committed of qualified theft of
motor vehicle is reclusion temporal in its medium and maximum periods to

be imposed in its maximum period. (PP -vs- Ricardo Dela Cruz alias Pawid,
Manuel dela Cruz alias Pawid, Danilo Dela Cruz and John Doe alias Henry
Balintawak and Orlando Padilla y Mendoza, Accused. RICARDO DELA CRUZ
alias Pawid, Accused-Appellant. G.R. No. 125936 Feb. 23, 2000 )
PERIOD WHEN BAIL IS EFFECTIVE AFTER CONVICTION IN LOWER COURTS
The bail bond that the accused previously posted can only be used during
the 15-day period to appeal (Rule 122) and not during the entire period of
appeal. This is consistent with Section 2(a) of Rule 114 which provides that
the bail "shall be effective upon approval and remain in force at all stages of
the case, unless sooner cancelled, until the promulgation of the judgment of
the Regional Trial Court, irrespective of whether the case was originally filed
in or appealed to it." This amendment, introduced by SC Administrative
Circular 12-94 is a departure from the old rules which then provided that bail
shall be effective and remain in force at all stages of the case until its full
determination, and thus even during the period of appeal.
Moreover, under the present rule, for the accused to continue his provisional
liberty on the same bail bond during the period to appeal, consent of the
bondsman is necessary. From the record, it appears that the bondsman,
AFISCO Insurance Corporation, filed a motion in the trial court on January 06,
1987 for the cancellation of petitioners' bail bond for the latter's failure to
renew the same upon its expiration. Obtaining the consent of the bondsman
was, thus, foreclosed. ( Aniceto Sabbun Maguddatu and Laureana Sabbun
Maguddatu, Petitioners, -vs- Honorable COURT OF APPEALS (Fourth Division
and People of the Philippines, Respondents. G.R. No. 139599, Feb. 23, 2000)
WHEN ABUSE OF SUPERIOR STRENGTH IS PRESENT.
We find, however, that the aggravating circumstance of abuse of superior
strength attended the killing. "To appreciate abuse of superior strength as an
aggravating circumstance, what should be considered is not that there were
three, four or more assailants of one victim, but whether the aggressors took
advantage of their combined strength in order to consummate the offense. It
is therefore necessary to show that the attackers cooperated in such a way
as to secure advantage of their superiority in strength."
In this case, appellants and their companions purposely gathered together
and armed themselves to take advantage of their combined strength to

ensure that Reynaldo Danao would be able to kill the victim without any
interference from other bystanders.
However, not having been alleged in the Information, abuse of superior
strength can only be considered as a generic aggravating circumstance. (PP
-vs- CIELITO BULURAN Y RAMIREZ and LEONARDO VALENZUELA Y CASTILLO,
Accused-Appellants. G.R. No. 113940, Feb. 15, 2000)

USE OF MOTOR VEHICLE AS QUALIFYING AGGRAVATING CIRCUMSTANCE

The use of a motor vehicle qualifies the killing to murder if the same was
perpetrated by means thereof. (PP -vs- THADEOS ENGUITO DefendantAppellant. G.R. 128812, Feb. 28, 2000)

ELEMENTS OF EVIDENT PREMEDITATION

(1) The time when the offender determined to commit the crime; (2) an act
manifestly indicating that the offender had clung to his determination; and
(3) sufficient lapse of time between the determination and the execution to
allow the offender to reflect on the consequences of his act. (PP -vsROGELIO GALAM, Accused-Appellant. G.R. No. 114740, Feb. 15, 2000)

WHEN NIGHTTIME IS AGGRAVATING

Nighttime as an aggravating circumstance must have specially been sought
to consummate the crime, facilitate its success or prevent recognition of the
felon. (PP -vs- CONSTANCIO MERINO and ARNULFO SIERVO, AccusedAppellants. G.R. No. 132329, Dec. 17, 1999)

TREACHERY IS PRESENT ON SECOND STAGE OF ACCIDENT

There is treachery when the offender commits any of the crimes against the
person employing means, methods or forms in the execution thereof which
tend directly and specifically to insure its execution without risk to himself
arising form the defense which the offended party might make. As earlier
mentioned, the deceased was already rendered completely helpless and

defenseless when he was stabbed by Pedro Lumacang. Although he was able

to run a short distance, he had absolutely no means of defending himself
from the three brothers who were armed with hunting knives, bent on
finishing him off. The wounded victim had not even so much as a stick or a
stone to parry off their blows. It should be noted, however, at this point that
inasmuch as treachery has been appreciated as a qualifying circumstance,
abuse of superior strength should not have been considered separately
inasmuch as it is absorbed in treachery. (PP -vs- PEDRO LUMACANG, PABLO
LUMACANG and DOMINGO LUMACANG, Accused-Appellants. G.R. No. 120283,
Feb. 1, 2000)

WHY DWELLING IS AGGRAVATING

"The home is a sort of sacred place for its owner. He who goes to another's
house to slander him, hurt him or do him wrong, is more guilty than he who
offends him elsewhere." (PP -vs- JOSE & NESTOR BiAS, Accused-Appellant.
G.R. No. 121630, Dec. 8, 1999)

EVEN FRONTAL ATTACK WOULD AMOUNT TO TREACHERY

Moreover, Milyn Ruales also testified that the knife used by accused was
hidden from view. Thus, Isabel Ruales was not prepared for such a violent
attack, especially considering that, at the time, she was unarmed and was
burdened with a large basket filled with about six kilos of corn and dried fish
hanging from her shoulders and thus, could not have possibly warded off the
blow or run away from her assailant. Although Milyn Ruales described the
attack having been frontal, this does not negate treachery since the essence
of treachery is the suddenness and unexpectedness of the attack, giving the
victim no opportunity to repel it or offer any defense of his person. Thus, we
hold that the trial court correctly appreciated the qualifying circumstance of
treachery. (PP -vs- CORNELIA SUELTO alias "ELY" alias "ROGELIA SUELTO",
G.R. No. 126097, Feb. 8, 2000)
DATE OF EFFECTIVITY OF RA 7659, ETC.
Republic Act No. 7659 took effect on 31 December 1993. Accordingly, the
said law only applies to crimes defined therein, including rape, which were
committed after its effectivity. It cannot be applied retroactively because, to
do so, would go against the constitutional prohibition on ex post facto laws.

For this reason, in order for the death penalty to be imposable, it is

incumbent upon the prosecution to establish beyond a shadow of doubt that
the case of the accused is already covered by Republic Act No. 7659.
AN EX POST FACTO LAW HAS BEEN DEFINED AS ONE WHICH
(a) makes criminal an act before the passage of the law and which was
innocent when done, and punishes such an act;
(b) aggravate a crime, or makes it greater than it was, when committed;
(c) changes the punishment and inflicts a greater punishment than the law
annexed to the crime when committed;
(d) alters the legal rules of evidence, and authorizes conviction upon less or
different testimony than the law required at the time of the commission of
the offense;
(e) assuming to regulate civil rights and remedies only, in effect imposes
penalty or deprivation of a right for something which when done was lawful;
and
(f) deprives person accused of a crime of some lawful protection to which he
has become entitled, such as the protection of a former conviction or
acquittal, or a proclamation of amnesty. (PP -vs- CHARITO ISUG MAGBANUA,
G.R. No. 128888, Dec. 3, 1999)

ILLEGAL POSSESSION OF FIREARMS

(REPUBLIC ACT NO. 8294)

SECTION 1. Section 1 Presidential Decree No. 1866, as amended, is hereby

further amended to read as follows:
"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Firearms or Ammunition or Instruments Used or Intended to be
Used in the Manufacture of Firearms or Ammunition. The penalty of prision
correccional in its maximum period and a fine of not less than Fifteen
thousand pesos (P15,000) shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any low
powered firearm, such as rimfire handgun, .380 or .32 and other firearm of
similar firepower, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.

"The penalty of prision mayor in its minimum period and a fine of Thirty
thousand pesos (P30,000) shall be imposed if the firearm is classified as high
powered firearm which includes those with bores bigger in diameter than .38
caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser
calibered firearms but considered powerful such as caliber .357 and caliber .
22 center-fire magnum and other firearms with firing capability of full
automatic and by burst of two or three: Provided, however, That no other
crime was committed by the person arrested.
"If homicide or murder is committed with the use of an unlicensed firearm,
such use of an unlicensed firearm shall be considered as an aggravating
circumstance.
"If the violation of this Section is in furtherance of or incident to, or in
connection with the crime of rebellion or insurrection, sedition, or attempted
coup d'etat, such violation shall be absorbed as an element of the crime of
rebellion, or insurrection, sedition, or attempted coup d'etat.
"The same penalty shall be imposed upon the owner, president, manager,
director or other responsible officer of any public or private firm, company,
corporation or entity, who shall willfully or knowingly allow any of the
firearms owned by such firm, company, corporation or entity to be used by
any person or persons found guilty of violating the provisions of the
preceding paragraphs or willfully or knowingly allow any of them to use
unlicensed firearms or firearms without any legal authority to be carried
outside of their residence in the course of their employment.
"The penalty of arresto mayor shall be imposed upon any person who shall
carry any licensed firearm outside his residence without legal authority
therefor."

SECTION 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby

further amended to read as follows:
"SECTION 3. Unlawful Manufacture, Sale, Acquisition, Disposition or
Possession of Explosives. The penalty of prision mayor in its maximum
period to reclusion temporal and a fine of not less than Fifty thousand pesos
(P50,000) shall be imposed upon any person who shall unlawfully
manufacture, assemble, deal in, acquire, dispose or possess hand

grenade(s), rifle grenade(s), and other explosives, including but not limited
to 'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other incendiary
devices capable of producing destructive effect on contiguous objects or
causing injury or death to any person.
"When a person commits any of the crimes defined in the Revised Penal
Code or special laws with the use of the aforementioned explosives,
detonation agents or incendiary devices, which results in the death of any
person or persons, the use of such explosives, detonation agents or
incendiary devices shall be considered as an aggravating circumstance.
"If the violation of this Section is in furtherance of, or incident to, or in
connection with the crime of rebellion, insurrection, sedition or attempted
coup d'etat, such violation shall be absorbed as an element of the crimes of
rebellion, insurrection, sedition or attempted coup d'etat.
"The same penalty shall be imposed upon the owner, president, manager,
director or other responsible officer of any public or private firm, company,
corporation or entity, who shall willfully or knowingly allow any of the
explosives owned by such firm, company, corporation or entity, to be used
by any person or persons found guilty of violating the provisions of the
preceding paragraphs."

SECTION 3. Section 5 of Presidential Decree No. 1866, as amended, is hereby

further amended to read as follows:
"SECTION 5. Tampering of Firearm's Serial Number. The penalty of prision
correccional shall be imposed upon any person who shall unlawfully tamper,
change, deface or erase the serial number of any firearm."

SECTION 4. Section 6 of Presidential Decree No. 1866, as amended, is hereby

further amended to read as follows:
"SECTION 6. Repacking or Altering the Composition of Lawfully Manufactured
Explosives. The penalty of prision correccional shall be imposed upon any
person who shall unlawfully repack, alter or modify the composition of any
lawfully manufactured explosives."

SECTION 5. Coverage of the Term Unlicensed Firearm. The term unlicensed

firearm shall include:
1) firearms with expired license; or
2) unauthorized use of licensed firearm in the commission of the crime.

RULE ON ILLEGAL POSSESSION OF FIREARMS BEFORE AN ACCUSED

MAYBE CONVICTED
In crimes involving illegal possession of firearm, the prosecution has the
burden of proving the elements thereof, viz:
a. the existence of the subject firearm; and
b. the fact that the accsused who owned or possessed it does not have the
license or permit to possess the same. (People v. Castillo, 325 scra 613)
The essence of the crime of illegal possession is the possession, whether
actual or constructive, of the subject firearm, without which there can be no
conviction for illegal possession.
After possession is established by the prosecution, it would only be a matter
of course to determine whether the accused has a license to possess the
firearm. (People v. Bansil, 304 scra 384)
Possession of any firearm becomes unlawful only if the necessary permit or
license therefor is not first obtained. The absence of license and legal
authority constitutes an essential ingredient of the offense of illegal
possession of firearm and every ingredient or essential element of an offense
must be shown by the prosecution by proof beyond reasonable doubt. Stated
otherwise, the negative fact of lack or absence of license constitutes an
essential ingredient of the offense which the prosecution has the duty not
only to allege but also to prove beyond reasonable doubt. (People v. Khor,
307 scra 295)
"To convict an accused for illegal possession of firearms and explosives under
P.D. 1866, as amended, two (2) essential elements must be indubitably

established, viz: (a) the existence of the subject firearm or explosive which
may be proved by the presentation, of the subject firearm or explosive or by
the testimony of witnesses who saw accused in possession of the same, and
(b) the negative fact that the accused had no license or permit to own or
possess the firearm or explosive which fact may be established by the
testimony or certification of a representative of the PNP Firearms and
Explosive Unit that the accused has no license or permit to possess the
subject firearm or explosive." (Del Rosario v. People, 05/31/01)
We stress that the essence of the crime penalized under P.D. 1866 is
primarily the accused's lack of license or permit to carry or possess the
firearm, ammunition or explosive as possession by itself is not prohibited by
law. (People v. Cortez, 324 scra 335, 344)
Illegal possession of firearm is a crime punished by special law, a malum
prohibitum, and no malice or intent to commit a crime need be proved.
(People v. Lubo, 101 Phil. 179) To support a conviction, however, there must
be possession coupled with intent to possess (animus possidendi) the
firearm. (Supra)

PRESENT MEANING OF ILLEGAL

POSSESSION OF FIREARM
Unlicensed firearm no longer simply means a firearm without a license duly
issued by lawful authority. The scope of the term has been expanded in Sec.5
of R.A. 8294.
Thus, the unauthorized use of a weapon which has been duly licensed in the name
of its owner/possessor may still aggravate the resultant crime. In the case at bar,
although appellants may have been issued their respective licenses to possess
firearms, their carrying of such weapons outside their residences and their
unauthorized use thereof in the killing of
e victim may be appreciated as an aggravating circumstance in imposing the proper
penalty for murder. (Pp. V. Molina; Gr 115835-36; July 22, 1998)
ILLEGAL POSSESSION OF FIREARM ONLY
SPECIAL AGGRAVATING CIRCUMSTANCE
IN CRIMES OF HOMICIDE, ETC.

Where murder or homicide was committed, the separate penalty for illegal
possession shall no longer be meted out since it becomes merely a special
aggravating circumstance.
This statutory amendment may have been an offshoot of our remarks in Pp. V. Tacan and Pp. V. Quijada :

Neither is the 2nd paragraph of Sec.1 meant to punish homicide or murder

with death if either crime is committed with the use of an unlicensed firearm,
i.e., to consider such use merely as a qualifying circumstance and not as an
offense. That could not have been the intention of the lawmaker because the
term penalty in the subject provision is obviously meant to be the penalty
for illegal possession of firearm and not the penalty for homicide or murder.
We explicitly stated in Tac-an :
There is no law which renders the use of an unlicensed firearm as an
aggravating circumstance in homicide or murder. Under an information
charging homicide or murder, the fact that the death weapon was an
unlicensed firearm cannot be used to increase the penalty for the 2nd
offense of homicide or murder to death (or reclusion perpetua under the
1987 Constitution). The essential point is that the unlicensed character or
condition of the instrument used in destroying human life or committing
some other crime, is not included in the inventory of aggravating
circumstances set out in Article 14 of the Revised Penal Code.
A law may, of course, be enacted making use of an unlicensed firearm as a
qualifying circumstance. (People v. Molina; GR 115835-36, July 22, 1998)
NEW PENALTY FOR LOW POWERED
FIREARM IN ILLEGAL POSSESSION
OF FIREARMS
Petitioner, fortunately for him, is nonetheless not entirely bereft of relief. The
enactment and approval on 06 Jun 1997 of RA 8294, being favorable to him,
should now apply. Under this new law, the penalty for possession of any low
powered firearm is only prision correccional in its maximum period and a fine
of not less than P15,000.00.
Applying the Indeterminate Sentence Law, the present penalty that may be
imposed is anywhere from two years, four months and one day to four years
and two months of prision correccional in its medium period, as minimum, up
to anywhere from four years, two moths and one day to six years of prision
correccional in its maximum period, as maximum.. The court in addition, may
impose a fine consistent with the principle that an appeal in a criminal case
throws the whole case open for review by the appellate tribunal. (Mario

Rabaja v CA, et al., Oct 8/97)

ACTS PUNISHABLE:
1. upon any person who shall unlawfully manufacture, deal in, acquire,
dispose, or possess any low powered firearm, such as rimfire handgun, .380
or .32 and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition
2. "If homicide or murder is committed with the use of an unlicensed firearm,
such use of an unlicensed firearm shall be considered as an aggravating
circumstance.
3. "If the violation of this Section is in furtherance of or incident to, or in
connection with the crime of rebellion or insurrection, sedition, or attempted
coup d'etat, such violation shall be absorbed as an element of the crime of
rebellion, or insurrection, sedition, or attempted coup d'etat.
4. "The same penalty shall be imposed upon the owner, president, manager,
director or other responsible officer of any public or private firm, company,
corporation or entity, who shall willfully or knowingly allow any of the
firearms owned by such firm, company, corporation or entity to be used by
any person or persons found guilty of violating the provisions of the
preceding paragraphs or willfully or knowingly allow any of them to use
unlicensed firearms or firearms without any legal authority to be carried
outside of their residence in the course of their employment.
5. The penalty of arresto mayor shall be imposed upon any person who shall
carry any licensed firearm outside his residence without legal authority
therefor
6. Any person who shall unlawfully tamper, change, deface or erase the
serial number of any firearm.
7. Any person who shall unlawfully repack, alter or modify the composition
of any lawfully manufactured explosives.

MALUM PROHIBITUM
The offense of illegal possession of firearm is a malum prohibitum punished
by a special law, in which case good faith and absence of criminal intent are
not valid defenses. (People v De Gracia, 7/6/94)

1. Manufacture, deal in, acquire, dispose or possess. It is these acts relative

to firearms. The obvious underlying principle is the undesirability of the
proliferation of firearms and their free traffic and possession. This is clear
from the first two whereas clause of P.D. 1866. It is then clear that illegal
possession, etc. is a malum prohibitum. For purpose of simplicity we will
confine our analysis to possession, although what we will discuss
hereunder applies to manufacture, dealing in, acquiring or disposing as well.
1.1. it is not correct to say without qualification that intent is immaterial.
Intent as to possession is immaterial. Intention to possess is material.
Whatever the purpose of the possession may be is consistently immaterial.
That one was in possession of an unlicensed firearms merely for ones
protection without intending harm on anybody is a fruitless defense. It is the
clear doctrine of such cases as People v. de la Rosa, 284 SCRA 158 that
mere possession without criminal intent is sufficient on which to render a
judgment of conviction.
1.2. HOWEVER, possession must be established beyond reasonable doubt,
and in view of the special meaning that possession has in criminal law,
discovery by police, officers alone of a firearmin the baggage or gloves
compartment of a car will not necessarily be sufficient to sustain a conviction
of the car owner or driver. Essential to the legal concept of possession in
illegal possession cases is animus possidendio. (People v. de la Rosa, supra;
People v. Sayang, 110 Phil 565).
1.3. How is animus possidendi established? There must be proved either by
direct or circumstantial evidence the intent of the accused to possess, or to
keep the firearm.
a.) Animus Possidendi is determined by recourse to overt acts prior to or
simultaneous with possession and other surrounding circumstances. (People
v. de la Rosa) when it is established that the accused purchased the weapon
in question, a good case for animus possidendi is made.
b.)Animus possidendi may also be inferred from the fact that an unlicensed
firearms was under the apparent control and power of the accussed. (People
v. Verches, 33 SCRA 174)
c.) People v. de Guzman, G.R. 117952-53 (February 14, 2001) holds that the
gravamen for the offense of violation of P.D.1866 is the possession of
firearm without the necessary permit and/or license. The crime is
immediately consummated upon mere possession of a firearm devoid of
legal authority, since it is assumed that the same is possed with animus
possidendi Does it then follow that everyone found with the firearm is in
possession thereof for the purpose of prosecution and conviction under P.D.
1866 as amended by R.A. 8294? The results would be patently absurd.
h. A person who finds a firearms and takes it with him to the police station
for the purpose of turning it over to the police should be commended, rather

than prosecuted.
ii. A person who is stopped at a check-point at which it is discovered that
there is firearms placed either advertently or inadvertently in his baggage
compartment without his knowledge - cannot be held liable for illegal
possession.
iii. If the offender was in possession of an unlicensed only on the occasion of
the shooting for transitory purpose and for the short moment in connection
with the shooting, the Supre Court held in People v. Macasling, 237 SCRA 299
that there was no evidence of animus possidendi.
iv. It then appears to be the more reasonable position that where a person is
apprehended with an unlicensed weapon, animus possidendi will be
disputably presumed. The accused may controvert the presumption of
animus possidendi. To convict, the court needs proof beyond reasonable
doubt of animus possidendi.

1.4 What the prosecution must prove for it to succeed under the law is twofold: first, the existence of the firearm; second, the absence of a license or a
permit to possess. (People v. Rugay, 291 SCRA 692)
a.) To prove the existence of the firearm, it is not absolutely necessary that
the object evidence be presented. It is very well possible that the accused
effectively conceals the weapon before his apprehension. Incontrovertible
testimonial evidence may successfully established the existence of the
firearm. (People v. Narvasa, G.R. 132878 [November 16, 1998]),
b.) An interesting question arises. The present law makes penalties depend
on the caliberof the firearm, i.e, on whether it is high-powered or lowpowered In People v. Gutierrez, G.R. 132878 (January 18, 1999) the Supreme
Court ruled that a U.S. carbine M1 caliber .30 was high-powered because it
was capable of ejecting more than one bullet in one squeeze. If it is the
criterion, then logically, caliber can be established by teetimony establishing
the manner in which the firearm ejected bullets. The distinguishing features
of particularly firearms, furthermore, that may be recited by keen observer
sworn in a s witness my identify the firearm as well as it caliber. This can be
established by a judicious combination of the testimonial evidence of
observers abd experts.
c.) A firearm is unlicensed when a certification from the Firearms and
Explosives Unit attests that no license has been issued. There will still be a
case for illegal possession if one holding a firearm duly licensed carries it
outside his residence when he has no permit to carry it outside his residence
(Pastrano v. Court of Appeals, 281 SCRA 287). A fortiori, the use of a licensed
firearm by one not licensed or permitted to use it would still be illegal
possession.

d.) A security guard employed by a security agency and issued a firearm by

the agency has the right to assume that the firearm issued to him is a
licensed firearm. If it turns out that the firearm is not licensed, there is no
animus possidendi of an unlicensed firearm. (Cuenco v. People, 33 SCRA
522). The case is obviously different, however, if a police officer leaves with a
cousin for safekeeping his firearm. The cousin knows fully well that he has no
permit or authority to keep the firearm. If he accepts to do this favor, he is
indictable. (People v. Sayong, 110 Phil 565)
2. Provided no other crime is committed. It is this proviso in the amendatory
law that has visited countless woes on numerous judges and has occasioned
not easily reconcilable decisions by the Supreme Court .it is obviously a case
of not only poor but miserable draftsmanship!
2.1 It is clear that where there is no other offense except the unlawful
possession of a firearm, the penalties provided for in the amended Section 1
shall be imposed: prision correccional in its maximum period for low-powered
firearms, and prision mayor in its maximum periods for high-powered
firearms. Thus in People v. Nunez, G.R. 112092 (March 1, 2001) holds that a
person may be convicted of simple illegal possession if the illegal possession
is proved and the frustrated murder and murder case involving the use of
the illegal possession has not been sufficiently proved. People v. Avecilla,
G.R. 117033 (February 15, 2001) teaches that the crime of illegal
possession of firearms, in its simple form, is committed any of the crimes of
murder, homicide, rebellion, insurrection, sedition or attempted coup detat.
2.2. It is also clear that where either homicide or murder is committed with
the use of an unlicensed firearm, such use shall constitute an aggravating
circumstances. It is well known that R.A. 8294 was initiated by Senator
Ramon Revilla as a favor to his friend Robin Padilla who was then serving
sentence for illegal possession. It was therefore meant to be more
benevolent, as it is in the penalties it impose. Senator Revilla, however, could
not see far enough (and regrettably neither could other legislators) and the
effect at least in the case of murder is that it may send the accused to the
lethal injection chamber where otherwise he would not be meted out the
death penalty. People v. Montinola, G.R. 131856-57 (July 1, 2001) with the
Chief Justice himself as ponente illustrates the complication the law has
introduced. In this case, the accused had been charged with two offenses:
robbery with homicide and illegal possession of firearms. During the
pendency of the case, the amended law came into force. The court then held
that insofar as R.A. 8294 was favorable to the accused in that it spared him
from separate prosecution for illegal possession, the charge for illegal
possession was dropped. Insofar, however, as it increased the penalty for
robbery with homicide, the aggravating circumstances of the use of
unlicensed weapon could not be appreciated. Rule 110, Section 9 of the

Revised Rules of Criminal Procedure will apply: As an aggravating

circumstances, the use of the unlicensed weapon must be alleged in the
information.
2.3 When the violation of the law penalizing unlicensed weapon is in
furtherance of or incident to, or in connection with the crimes of rebellion,
insurrection, sedition or attempted coup detat then the violation is
absorbed in the main offense. (R.A. 8294, Section 1).
2.4 What happens when an unlicensed weapon is used in the commission of
other offenses other that homicide, murder, rebellion, insurrection, sedition
or attempted coup d etata? People v. Walpandladjaalam, G.R. 1361149-51
( September 19, 2000) provides the answer in the distinctively clear
language of Justice Panganiban: The law is clear: the accused can be
convicted of simple illegal possession of firearms, provided that no other
crime was committed by the person arrested. If the intention of the law in
the second paragraph were to refer only to homicide and murder, it should
have expressly said so, as it did in the third paragraph. Verily, where the law
does not distinguish, neither should we. In brief, where the accused
commits a crime other than those enumerated with the use of an unlicensed
weapon, no separate charge for such use will be brought against him.
Consistent with this is the disposition by the Supreme court decreed:
Accordingly, all pending cases for illegal possession of firearms should be
dismissed if they arose from the commission of crimes other than those
indicated in Section 1 and 3 of R.A. 8294.
2.5 Clearly the law leads to absurd results, for when the use of an unlicensed
weapon attends the commission of a crime, no matter how trivial, the case of
illegal possession recedes into judicial irrelevance. The matter is definitely
one that calls for a curative statute and the Supreme Court has referred the
matter to the Congress for another look. One moral lesson can be learned:
Laws passed as favor to ones friend is a poor laws!
OWNERSHIP IS NOT AN ESSENTIAL
ELEMENT OF ILLEGAL POSSESSION
The rule is that ownership is not an essential element of illegal possession of
firearms and ammunition. What the law requires is merely possession which
includes not only actual physical possession but also constructive possession
or the subjection of the thing to ones control and management.
INTENT TO POSSESS, OR ANIMUS POSSIDENDI IS ESSENTIAL
A distinction should be made between criminal intent and intent to possess.

While mere possession without criminal intent is sufficient to convict a

person for illegal possession of firearms, it must still be shows that there was
animus possidendi or an intent to possess on the part of the accused.
There is no evidence of animus possedendi if the offender was in possession
of an unlicensed firearm only on the occasion of the shooting for a transitory
purpose and for the short moment in connection with the shooting.
Lack of evidence is an essential element of the crime and that the same
must be alleged in the Information and duly proved.
(People -vs- Macasling, 237 SCRA 299)
Ownership of the gun is immaterial or irrelevant in violation of PD 1866, as
amended. One may be convicted of possession of an unlicensed firearm even
if he is not the owner thereof.
(People -vs- Reynaldo Cruz, GR No.
76728, August 3, 1988)
Even if the gun is "paltik," there is a need to secure license for the gun, and if
found without any license therefor, the offender is liable for violation of PD
1866.
(People vs- Filemon Ramos, 222 SCRA 557)
If an unlicensed firearm is used to commit a crime other than homicide or
murder, such a direct assault with attempted homicide, the use of an
unlicensed firearm is neither an aggravating circumstances nor a separate
offense. Since the law uses the word Homicide or Murder, possession of an
unlicensed firearm is not aggravating in Attempted Homicide.
(People -vs- Walpan Ladjaamlam, et al.,
GR No. 136149-51, September 19, 2000)
Where the accused was charged of Murder and violation of PD 1866 and that,
in the meantime, Republic Act 8294 took effect, the accused should be
convicted only of Murder. The use of unlicensed firearm should not be
considered as aggravating because the Court will have to impose the death
penalty which cannot be allowed because, at the time of the commission of
the offense, the death penalty cannot as yet, be imposed. However, in his
concurring opinion, Chief Justice Hilario Davide, Jr. declared that, under such
a factual milieu, the charge of violation of PD 1866 should continue and if the
accused is found guilty, he should be meted the death penalty under
Republic Act 8294.
(People -vs- Victor Macoy, GR No.
126253, August 16, 2000)
Where the prosecution failed to adduce the gun in evidence coupled with the
fact that per Certification of the FEU, " no available information regarding the

license for the gun and the inconsistency in the evidence of the prosecution,
the latter failed to discharge its burden.
(People -vs- Ricolito Rugay, et al., 291 SCRA 692)
Mere possession without criminal intent is sufficient on which to render a
judgment of conviction for violation of PD 1866, as amended. However, there
must be animus possedendi or intent to possess without any license or
permit. Good faith is not a defense. Neither is lack of criminal intent.
(People -vs- Rodolfo Dela Rosa, et al., 284 SCRA 158)
Temporary, incidental, casual or harmless possession of firearm is not
punishable. Hence, stealing a firearm to render the owner defenseless is not
a crime under the law. (idem, supra)
Possession includes actual physical possession and constructive possession.
The animus can be determined from the overt acts of the accused prior to or
coetaneous with and other surrounding circumstances of such possession.
Hence, where the accused found a gun and was on his way to deliver the gun
to the police authority and was arrested, in the process, there is no animus
possedendi.
(People -vs- Rodolfo Dela Rosa, et al., supra)
Even if a paltik is a homemade gun and thus illegally manufactured
nevertheless, the Prosecution is burdened to prove that the accused has no
license for the gun.
(People -vs- Felimon Ramos, et al., 222 SCRA 557)
For the accused to be guilty of violation of PD 1866 as amended the
Prosecution must prove: (a) the existence of the subject firearm; (b) the fact
that the accused who owned or possessed the firearm does not have the
corresponding license or permit to possess the same.
(People -vs- Ricolito Rugay, et al., 291 SCRA 692)
Where the accused is convicted of violation of Republic Act 8294 and meted
a penalty less than six (6) years, and a fine of P15,000.00, he should be
ordered to undergo subsidiary imprisonment in case of insolvency.
(Mario Rabaja -vs- Court of Appealss, et al., 280 SCRA 290)
In the light of "People -vs- Martin Simon," 234 SCRA 555, and Articles 13 and
14, in relation to Article 63, of the Revised Penal Code and the Indeterminate
Sentence Law for violation of the Revised Penal Code may now be applied for
violation of PD 1866, as amended and Rep[ublic Act 6425, as amended.
Even if a person is licensed to possess a firearms but brings out firearm
outside of his residence without permit therefor, he is guilty of violation of
the last paragraph of Section 1 of PD 1866, as amended. A Mission Order

cannot take the place of a license. A Mission Order can only be issued to one
licensed to possess a firearm.
(Pedrito Pastrano -vs- Court of Appeals, et al., 281 SCRA 287)
If the accused borrowed a gun from another who is licensed to possess
firearm, may the former be liable for violation of PD 1866, as amended? Yes.
Even if the gun is licensed to one and lends it to another, the latter is liable
for violation of PD 1866, as amended. A license to possess a firearm and a
permit to carry a licensed firearm outside of his residence is not transferable.
(Pedrito Pastrano -vs- Court of Appeals, et al., supra)
Even if the firearm subject of the crime is not adduced in evidence one may
still be convicted of possession of an unlicensed firearm as long as proof was
adduced that the acused was in possession of a firearm.
(People -vs- Felicisimo Narvasa, GR No.
128618, November 16, 1998)
NOTE: Under Republic Act 8294, the penalty depends upon the caliber of the
gun. Suppose there is no testimony as to the caliber of the gun?
Where a security guard was given by his employer, a security agency, a
firearm, and the accused assumed that the employer secured the license for
the firearm but that it turned out that the employer failed to get any license,
the security guard is not criminally liable. The security guard has the right to
assume that the security agency secured the license.
(Ernesto Cuenca -vs- People, 33 SCRA 522)
If a constabulary soldier entrusted his gun to the accused for safekeeping
and later the accused found in possession of the gun, the accused is guilty of
possession of unlicensed firearm. To exculpate himself, the accused must
prove absence of animus possidendi.
(People -vs- Perlito Soyang, et al., 110 Phil. 565, 583)
A secured a loan from B and pledged his unlicensed firearm as security for
the loan. A promised to pay his loan and retrieve the firearm as soon as he
had money. B found in possession of the unlicensed firearm. For the court to
sustain the contention of B is to authorize the indefinite possession by B of
the unlicensed firearm because there was no way to determine when A could
pay his account.
(People -vs- Cornelio Melgas, 100 Phil. 298)
If a licensed firearm if used to commit Murder or Homicide, such
circumstances is merely a special aggravating circumstance which must be
alleged in the Information and cannot be offset by any mitigating
circumstance. (People -vs- Meriato Molina, et al., G.R. No. 115835, July 22,
1998; People -vs- Narvasa, G.R. no. 128618 November 18, 1998)

The Decision of the Supreme Court in People -vs- Paterno Tac-an, 182 SCRA
601; People -vs- Jesus Deunida, and People -vs- Barros and People -vs- Daniel
Quijada 259 SCRA 191 had been overtaken by Republic Act 8294.
Under the amendment, the death penalty may now be imposed if the
accused is convicted of Murder with the use of licensed or unlicensed
firearms.
As long as the accused is proved to have been in possession of the
unlicensed firearm even if the firearm is not adduced in evidence, conviction
under the law is proper.
(People -vs- Felicisimo Narvasa, supra)
Republic Act 8294 took effect on July 6, 1997.
If the accused is charged of Murder and violation of PD 1866 and during the
trial, Republic Act 8294 took effect, the accused cannot be convicted of
violation of PD 1866, as amended. Neither should the possession of an
unlicensed firearm be considered as an aggravating circumstance as it will
be less favorable to the accused. If the accused used a sumpak to kill the
victim, the prosecution must prove that he had no license or permit to
possess the sumpak.
(People -vs- Cipriano de Vera,
G.R. No. 121462-63, June 9, 1999)
Compare "People -vs- Wilfredo Filoteo," 290 SCRA 627 where the accused
was convicted of Murder and violation of PD 1866 and during the pendency
of the appeal, Republic Act 8294 took effect. Our Supreme Court affirmed the
conviction of the Accused of two (2) crime of Homicide and violation of PD
1866, as amended, and applied the penalty for the crimes under the
amendment.
In "People -vs- Veriato Molina, et al.," 292 SCRA 742, our Supreme Court En
Banc declared that where the accused was convicted of said crio,es, by the
Trial Court but that during the pendency of the appeal, with the Supreme
Court, Republic Act 8294 took effect, the accused should only be convicted of
Murder with the use of an unlicensed firearm as mere a special aggravating
circumstance.
Murder, under Republic Act 8294, is used in its generic term and, hence,
includes Parricide
(People versus Octavio Mendoza,
GR No. 109270-80, January 18,1999)

A United States carbine M1, caliber .3-0 is a high-powered gun because it is

capable of emitting two or three bullets in one squeeze.
(People -vs- Eduardo Gutierrez,
GR No. 132878, September 1999)
It is not necessary that the firearm be produced and offered in evidence for
Republic Act 8294 to apply. It is not enough that there is evidence of the
existence of the gun which can be established either by testimony or
presentation of the gun itself.
Possession of an unlicensed firearm and used in killing is a special
aggravating circumstance.
(People -vs- Felicisimo Narvasa,
GR No. 128618, November 18, 1998)
The Decision of the Supreme Court in People versus Rex Bergante, et. al., GR
No. 120369, February 27, 1998, that the use of an unlicensed firearm to
commit murder is only a generic aggravating circumstance is no longer true.
Possession under the law may either be actual physical possession or
constructive possession. However, although the crime under PD 1866, as
amended, is malum prohibitum, however, there must be animus possidendi,
or intent to possess. Animus possidendi may be inferred from the fact that an
unlicensed firearm is under the apparent control and power of the accused.
however, animus possidendi may be contradicted if a person in possession of
an unlicensed firearm does not assert a right thereto.
If the possession of an unlicensed gun is merely temporary, incidental or
transient, the same is not punishable under PD 1866. However, the law does
not provide for a fixed period of time for one to be deemed in "possession" of
an unlicensed firearm. (People -vs- Rolando Verches, 233 SCRA 174). Each
factual milieu must be considered.
IMPLICATION BY RA 8294 ON PD 1866 (ILLEGAL POSSESSION OF FIREARMS)
P.D. 1866, which codified the laws on illegal possession of firearms, was
amended on June 6, 1997 by Republic Act 8264. Aside from lowering the
penalty for said crime, R.A. 8294 also provided that if homicide or murder is
committed with the use of an unlicensed firearm, such use shall be
considered as a special aggravating circumstance. This amendment has two
(2) implications: first, the use of an unlicensed firearm in the commission of
homicide or murder shall not be treated as a separate offense, but merely as
a special aggravating circumstance; second, as only a single crime (homicide
or murder with the aggravating circumstance of illegal possession of firearm)
is committed under the law, only one penalty shall be imposed on the

accused.
Prescinding therefrom, and considering that the provisions of the
amendatory law are favorable to herein appellant, the new law should be
retroactively applied in the case at bar. It was thus error for the trial court to
convict the appellant of two (2) separate offenses, i.e., Homicide and Illegal
Possession of Firearms, and punish him separately for each crime. Based on
the facts of the case, the crime for which the appellant may be charged is
homicide, aggravated by illegal possession of firearm, the correct
denomination for the crime, and not illegal possession of firearm, aggravated
by homicide as ruled by the trial court, as it is the former offense which
aggravates the crime of homicide under the amendatory law.
EVEN IF ACCUSED ADMITTED THAT HE HAS NO LICENSE, SUCH ADMISSION IS
NOT SUFFICIENT PROOF OF ILLEGAL POSSESSION OF FIREARM
Hence, in the case at bar, although the appellant himself admitted that he
had no license for the gun recovered from his possession, his admission will
not relieve the prosecution of its duty to establish beyond reasonable doubt
the appellant's lack of license or permit to possess the gun. In People vs.
Solayao, we expounded on this doctrine, thus:
"x x x by its very nature, an admission is the mere acknowledgement of a
fact or of circumstances from which guilt may be inferred, tending to
incriminate the speaker, but not sufficient of itself to establish his guilt." In
other words, it is a statement by defendant of fact or facts pertinent to
issues pending, in connection with proof of other facts or circumstances, to
prove guilt, but which is, of itself, insufficient to authorize conviction. From
the above principles, this Court can infer that an admission in criminal cases
is insufficient to prove beyond doubt the commission of the crime charged.
"Moreover, said admission is extrajudicial in nature. As such, it does not fall
under Section 4 of Rule 129 of the Revised Rules of Court which states:
An admission, verbal or written, made by a party in the course of the trial or
other proceedings in the same case does not require proof.
"Not being a judicial admission, said statement by accused-appellant does
not prove beyond reasonable doubt the second element of illegal possession
of firearm. It does not even establish a prima facie case. It merely bolsters
the case for the prosecution but does not stand as proof of the fact of
absence or lack of a license." (emphasis supplied) (PP -vs- JULIAN CASTILLO Y
LUMAYRO, G.R. No. 131592-93, Feb. 15, 2000)
ELEMENTS OF ILLEGAL POSSESSION OF FIREARMS

To convict an accused for illegal possession of firearms and explosive under

P.D. 1866 as amended, two (2) essential elements must be indubitably
established, viz: (a) the existence of the subject firearm or explosive which
may be proved by the presentation of the subject firearm or explosive or by
the testimony of witnesses who saw accused in possession of the same, and
(b) the negative fact that the accused had no license or permit to own or
possess the firearm or explosive which fact may be established by the
testimony or certification of a representative of the PNP Firearms and
Explosives Unit that the accused has no license or permit to possess the
subject firearm or explosive.
In the case at bar, the prosecution failed to prove the second element of the
crime, i.e., the lack of license or permit of appellant Cortez to possess the
hand grenade. Although the hand grenade seized by PO2 Santos from
appellant was presented in court, the records bear that PO2 Santos did not
submit the grenade to the PNP Firearms and Explosives Unit for verification.
This explains why no certification or testimony was adduced by the
prosecution at the trial to prove that appellant Cortez was not licensed to
possess the explosive. The failure of the prosecution to adduce this fact is
fatal to its cause. We stress that the essence of the crime penalized under
P.D. 1866 is primarily the accused's lack of license or permit to carry or
possess the firearm, ammunition or explosive as possession by itself is not
prohibited by law.
MAY EXPLOSIVES BE GIVEN A PERMIT OR LICENSE?
In the case of an explosive, a permit or license to possess it is usually
granted to mining corporations, military personnel and other legitimate
users. (PP -vs- BERNIE CORTEZ Y NATANIO, ET AL., G.R. Nos. 131619-20, Feb.
1, 2000)
UNDER R.A. 8294 A SEPARATE CONVICTION FOR ILLEGAL POSSESSION OF
FIREARMS AND FOR HOMICIDE IS NOT ALLOWED
With respect to the conviction of accused-appellant for illegal possession of
firearms under P.D. No. 1866, it was held in the case of People vs. Molina and
reiterated in the recent case of People vs. Ronaldo Valdez, that in cases
where murder or homicide is committed with the use of an unlicensed
firearm, there can be no separate conviction for the crime of illegal
possession of firearms under P.D. No. 1866 in view of the amendments
introduced by Republic Act No. 8294. Thereunder, the use of unlicensed
firearm in murder or homicide is simply considered as an aggravating
circumstance in the murder or homicide and no longer as a separate offense.
Furthermore, the penalty for illegal possession of firearms shall be imposed
provided that no crime is committed. In other words, where murder or
homicide was committed, the penalty for illegal possession of firearms is no
longer imposable since it becomes merely a special aggravating
circumstance. (PP -vs- AUGUSTO LORETO RINGOR, JR., G.R. No. 123918, Dec.
9, 1999)

DANGEROUS DRUG ACT OF 2002

(Republic Acts No. 9165)

DEFINITIONS OF TERMS
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 of such transaction through fraud,
destruction of documents, fraudulent use of permits, misdeclaration, use of front
companies or mail fraud.
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 any unauthorized officer, with a view to gathering evidence to
identify any person involved in any dangerous drug related offense, or to facilitate
prosecution of that offense.
Controlled Precursor and Essential Chemicals Includes 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.
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 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.
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.
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 ground to believe on or suspects, has violated the
provision of this Act in order to prevent the arrest, prosecution and conviction of the
violator.
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 drugs or who acts as a broker in any of such transaction, in
violation of this Act.
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.

What are the significant Provisions in R.A. 6425

that have been changed?
1. Under this Act there is no more distinction between prohibited drug and regulated
drugs and/or controlled precursors and essential chemicals enumerated in Tables I
and II of the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances.
2. The penalties provided by R.A. 7659 was changed , adopting partially the
penalties in R.A. 6425.
3. In planting evidence any person now maybe held liable. Before, only law
enforcement agents.
4. the provisions of the Revised Penal Code have no suppletory effect except for
minors who may be sentenced to reclusion perpatua.

What are the new kinds of drugs

that are included in R.A. 9165?
Methylenedioxymethamphetamine (MDMA) or commonly known as Ecstasy, or its
any other name which refers to the drugs having such chemical composition,
including any of its isomers or derivatives in any form. Paramethoxyamphetamine
(PMA), Trimethoxyamphetamine (TMA), lysergic acid diethylamine (LSD), gamma
hydroxybutyrate (GHB) and those similarly designed or newly introduced drugs and

their derivatives, without having any therapeutic value or if the quantity possessed
is far beyond therapeutic requirement, as determined and promulgated by the
Board in accordance to Section 93, Art XI of this Act of R.A. 9165.

ACTS PUNISHABLE UNDER THE LAW

1.) Importation of any dangerous drug, regardless of the quantity and purity
involved, including any and all species of opium poppy or any part thereof or
substances derived thereform even for floral, decorative and culinary purposes.
2.) Importation of any controlled precursor and essential chemical.
3.) Importation of any dangerous drug and/or controlled precursor and essential
chemical through the use of a diplomatic passport, diplomatic facilities or any other
means involving his/her official status intended to facilitate the unlawful entry.
4.) Organizing, managing, or acting as a financier of any of the illegal activities
penalized under Section 4 of the Law.
5.) Acting as protector/coddler of anyone who violates Section 4 of the Law.
6.) Sale, trading, administration, dispensation, distribution and transportation of
dangerous drugs, regardless of quantity and purity involved, or acting as a broker in
any of such transactions.
7.) Sale, trading, administration, dispensation, distribution and transportation of any
controlled precursor and essential chemical, or acting as a broker in such
transaction.
8.) Use by drug pushers of minors or mentally incapacitated individuals as runners,
couriers and messengers, or in any other capacity directly connected to the trade of
dangerous drugs and/or controlled precursor and chemicals.
9.) Acting as a protector/coddler of any violator of the provision of Sec. 5.
10.) Maintenance of a Den, Dive or Resort where any dangerous drug is used or sold
in any form.
11.) Maintenance of a Den, Dive or Resort where any controlled precursors and
essential chemical is used or sold in any form.
12.) Acting as protector/coddler of a maintainer of a Den, Dive, or Resort
13.) Employees and Visitors of a Den, Drive, or Resort
14.) Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals
15.) Acting as a protector or coddler of any violator of Sec. 8
16.) Illegal Chemical Diversion of Controlled Precursor and Essential Chemicals.
17.) Manufacture or Delivery of Equipment, Instrument, Apparatus, and other
Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals.
18.) Possession of Drug.
19.) Possession of equipment, Instrument, Apparatus, and Other Paraphernalia for
Dangerous Drugs
20.) Possession of Dangerous Drugs During Parties, Social Gathering or Meetings.

21.) Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for

Dangerous Drugs during Parties, Social Gathering or Meetings.
22.) Use of Dangerous Drugs.
23.) Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources
thereof.
24.) Maintenance and keeping of Original Records of Transaction on Dangerous
Drugs and/or Controlled Precursors and Essential Chemicals
25. Unnecessary Prescription of Dangerous Drugs
26.) Unlawful Prescription of Dangerous Drugs
27.) Attempt or Conspiracy to commit the following unlawful acts: (a) Importation of
any dangerous drugs and/or controlled precursor and essential chemical; (b) Sale,
trading, administration, dispensation, delivery, distribution, and transportation of
any dangerous drug and/or controlled precursor and essential chemical; (c)
Maintenance of a den, dive, or resort where dangerous drugs is used in any form;
(d) Manufacture of any dangerous drug and/or controlled precursor and essential
chemical; and (e) Cultivation or culture of plants which are sources of dangerous
drugs.

CRIMINAL LIABILITY OF ALIENS, OFFICERS

OF PARTNERSHIP, CORPORATION, ASSOCIATIONS, OR OTHER JURIDIUCAL ENTITIES
1. In addition to the penalties prescribed in the unlawful act committed, any alien
who violates such provisions of the Law, after service of sentences, shall be
deported immediately without further proceedings, unless the penalty is death.
2. In case the violation of the Law is committed by a partnership, corporation,
association or any juridical entity, the partner, president, director, manager, trustee,
estate administrator, or officer who consents to or knowingly tolerates such
violation shall be held criminally liable as co-principal.
3. The penalty provided for the offense under the Law shall be imposed upon the
partner, president, director, manager, trustee, estate administrator, or officer who
knowingly authorizes, tolerates, or consents to the use of a vehicle, vessel, aircraft,
equipment or other facility as an instrument in the importation, sale, trading,
administration, dispensation, delivery, distribution, transportation, or manufacture
of dangerous drugs, or chemical diversion, if such vehicle, aircraft, equipment or
other instrument is owned by or under the control or supervision of the partnership,
corporation, association or juridical entity to which they are affiliated.

CRIMINAL LIABLITY OF PUBLIC OFFICERS OR EMPLOYEES

1. Any public officer or employee who (1) misappropriates, (2) misapplies or (3) fails
to account for confiscated, seized or surrendered drugs, plant sources of dangerous

drugs, controlled precursors and essential chemicals, instruments/paraphernalia

and/or laboratory equipment including the proceeds or properties obtained from the
unlawful acts punished under the Law shall be penalized with life imprisonment to
death and a fine ranging fromP500,000.00 to P10,000,000.00 and with perpetual
disqualification from any public office (Sec.27).
2. Any government official or employee found guilty of the unlawful acts punished
under the Law shall be imposed the maximum penalties provided for the offense
and shall be absolutely perpetually disqualified from holding any public office. (Sec.
28).

CRIMINAL LIABILITY OF ELECTIVE LOCAL OR NATIONAL OFFICIALS WHO BENEFITS

FROM DRUG TRAFFICKING whether or not he know that it came from drugs, but
the one who gave must be convicted first by final judgment.
1. Any elective local or national official found to have (1) benefited from the
proceeds of the trafficking of dangerous drugs as prescribed in the Law, or has (2)
received any financial or material contributions or donations from natural or juridical
persons found guilty of trafficking dangerous drug as prescribed in the law, shall be
removed from office and perpetually disqualified from holding any elective or
appointive positions in the government, its divisions, subdivisions, and
intermediaries, including government-owned or controlled corporations (\sec.27)

CRIMINALLIABILITY OF PRIVATE INDIVIDUAL

2. Any person found guilty of planting any dangerous drug and/or controlled
precursor and essential chemical, regardless of quantity and purity, shall be
punished with death. (Sec. 29).
3. Any person violating any regulation issued by the Dangerous Drug Board shall be
punished with imprisonment ranging from 6 months and 1 day to 4 years and a fine
ranging from P10,000.00 to P50,000.00 in addition to the administrative sanction
which may be imposed by the Board (Sec. 32)

CRIMINAL LIABILITY FOR

PLANTING OF EVIDENCE
Any person who is found guilty of planting nay dangerous drug and/ or controlled
precursor and essential chemicals, regardless of quantity and purity, shall suffer the
penalty of death. (Sec. 29). Previosly, only law enforcement agent maybe held liable
(R.A. 7659).

ACCESORY PENALTIES
Any person convicted under this Law (R.A.9165 ) shall be disqualified to exercise
his/her civil rights such as, but not limited to, the right of parental authority or
guardianship, either as to the person or property of any ward, the rights to dispose
of such property by any act or any conveyance inter vivos, and political rights such
as but not limited to, the right to vote and be voted for. Such rights shall also be
suspended during the pendency of an appeal from such conviction (Sec.35)

AGGRAVATING CIRCUMSTANCES
DRUG RELATED CASES
1.) If the importation or bringing into the Philippines of any dangerous drugs and/or
controlled precursor and essential chemicals was done through the use of
diplomatic passport, diplomatic facilities or any other means involving his/her
official status intended to facilitate the unlawful entry of the same
2.) The sale trading, administration, dispensation, delivery, distribution or
transportation of any dangerous drug and/or controlled precursor and essential
chemical transpired within one hundred (100) meters from the school
3.) The drug pusher use minors or mentally incapacitated individuals as runners,
couriers and messenger, or in any other capacity directly connected to the
dangerous drug and/or controlled precursor and essential chemical trade.
4.) The victim of the offense is a minor or mentally incapacitated individual, or
should a dangerous drug and/or controlled precursor and essential chemicals
involved `in any offense be the proximate cause of death of a victim.
5.) In case the clandestine laboratory is undertaken or established under the
following circumstances:
a.) Any phase of the manufacturing process was conducted in the presence or with
the help of minor/s
b.) Any phase of manufacturing process was established or undertaken within one
hundred (100) meters of a residential, business, church or school premises.
c.) Any clandestine laboratory was secured or protected with booby traps.
d.) Any clandestine laboratory was concealed with legitimate business operations.
e.) Any employment of a practitioner, chemical engineer, public official or foreigner.
6.) In case the person uses a minor or a mentally incapacitated individual to deliver

equipment, instrument, apparatus and other paraphernalia use for dangerous

drugs.
7.) Any person found possessing any dangerous drug during a party, or a social
gathering or meeting, or in the proximate company of at least two (2) person.
8.) Possession or having under his/her control any equipment, instrument,
apparatus and other paraphernalia fit of intended for smoking, consuming,
administering, injecting, ingesting or introducing any dangerous drug into the body,
during parties, social gatherings or meetings, or in the proximate company of at
least two (2) person

WHAT ARE THE PRIVILEGE NOT

AVAILABLE TO VIOLATOR OF THIS ACT?
1.) 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.
2.) Any person convicted for drug trafficking or pushing under this Act, regardless of
the penalty imposed by the Court, cannot avail of the privilege granted by the
Probation Law of P.D. No. 968, as amended, except minors who are first-time
offenders.
Note:- Pendency of appeal suspend the right of the accused
- Rights to Self-incrimination do not refer to giving blood.

IMMUNITY FROM PROSECUTION

AND PUNISHMENT
Immunity from Prosecution and punishment Notwithstanding the provision of
Section 17, Rule 119 of the Revised Rules of Criminal Procedure and the provisions
of Republic Act No. 6981 or the Witness Protection, Security and Benefits Act of
1991, any person who has violated Sections 7,11, 12, 14, 15 and 19, Article II of this
Act, who voluntarily gives information about any violation of Section 4, 5, 6, 8, 13
and 16, Article II of this Act as well as any violation of the offenses mentioned if
committed by drug syndicate, or of any information leading to the whereabouts,
identities and arrest of all or any of the members thereof; and who willingly testifies
against such persons as described above, shall be exempted from the prosecution
or punishment for the offense with reference to which his/her information of
testimony in bar of such prosecution; Provided, that the following condition concur:
1.) The information and testimony are necessary for the conviction of the person
described above;

2.) Such information are not yet in the possession of the State;
3.) Such information and testimony can be corroborated on its material points;
4.) The informant or witness has not been previously convicted of a crime involving
moral turpitude, except when there is no other direct evidence available for the
State other than the information and testimony of said informant or witness; and
5.) The informant or witness shall strictly and faithfully comply without delay, any
condition or undertaking, reduced into writing, lawfully imposed by the State as
further consideration for the grant of immunity from prosecution and punishment.
Provided, further, That this immunity may be enjoyed by such informant or witness
who does not appear to be most guilty for the offense with reference to which
his/her information or testimony were given. Provide, finally, that there is no direct
evidence available for the State except for the information and testimony of the
said informant or witness.

TERMINATION OF THE
GRANT OF IMMUNITY
The immunity above-granted shall not attach should it turn out subsequently that
the information and/or testimony is false, malicious, or made only for the purpose of
harassing, molesting or in any way prejudicing the persons described in Section 33
against whom such information or testimony is directed. In such case, the informant
or witness shall be subject to prosecution and the enjoyment of all rights and
benefits previously accorded him under the Law or any other law, decree or order
shall be deemed terminated.
In case the informant or witness under the Law fails or refuse to testify without just
cause, and when lawfully obliges to do so, or should he/she violate any condition
accompanying such immunity as provided above, his/her immunity shall be
removed and he/she shall be likewise be subjected to contempt and/or criminal
prosecution, as the case may be and the enjoyment of all rights and benefits
previously accorded him under the Law or in any other law, decree or order shall be
deemed terminated. (Sec 34.)
In case the informant or witness referred to under the Law falls under the
applicability of Section 34, such individual cannot avail of the provision under Article
VIII of the Law.

PERSON/S WHO ARE SUBJECT

TO THE MANDATORY DRUG TESTING
a.) Applicants for drivers license no drivers license shall be issued or renewed to

nay person unless he/she presents a certification that he/she has undergone a
mandatory drug test and indicating thereon that he/she is free from the use of
dangerous drugs.
b.) Applicants for firearms license and permit to carry firearms outside of residence.
All applicants for firearms license and permit to carry firearms outside of residence
shall undergo a mandatory drug test to ensure that they are free from the use of
dangerous drugs; Provided, That all persons who by the nature of their profession
carry firearms shall undergo drug testing;
c.) Officers and employees of public and private offices. Officers and employees of
public and private offices, whether domestic or overseas, shall be subjected to
undergo a random drug test as contained in the companys work unless and
regulation, which shall be borne by the employer, for purposes of reducing the risk
in the workplace. Any officer or employee found positive for the sue of dangerous
drug shall be dealt with administratively which shall be a ground for suspension or
termination, subject to the provision Article 282 of the Labor Code and pertinent
provisions of the Civil Service Law.
d.) Officers and members of the military, police and other law enforcement
agencies. Officers and members of the military, police and other law enforcement
agencies shall undergo an annual mandatory drug test.
e.) All persons charged before the prosecutors office with a criminal offense having
an imposable penalty of imprisonment of not less than six (6) years and one (1) day
shall have undergo a mandatory drug test.
f.) All candidates for public office whether appointed or elected both in the national
or local government shall undergo a mandatory drug test.

CONFIDENTIALITY OF RECORDS UNDER

THE COMPULSARY SUBMISSION PROGRAM
The records of a drug dependent who was rehabilitated and discharged from the
Center under the compulsory submission program, or who was charged for violation
of Section 15 of this Act, shall be covered by Section 60 of this Act (R.A. 9165).
However, the record of a drug dependant who was not rehabilitated, or who
escaped but did not surrender himself/herself within the prescribed period, shall be
forwarded to the court and their use shall be determined by the court, taking into
consideration public interest and the welfare of the drug dependant (Sec. 64)
DISCHARGED AFTER COMPLIANCE WITH CONDITIONS OF SUSPENDED SENTENCE OF
A FIRST-TIME MINOR OFFENDER
If the accused first time minor offender under suspended sentence complies with
the applicable rules and regulation of the Board, including confinement in a Center,
the court, upon a favorable recommendation of the Board for a final discharge of
the accused, shall discharge the accused and dismiss all proceedings.

Upon the dismissal of the proceedings against the accused, the court shall enter an
order to expunge all official records, other than the confidential record to be
retained by the DOJ relating to the case. Such an 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 or of concealment or
misrepresentation by reason of his/her failure to acknowledge the case or recite any
fact related therto in response to any inquiry madeof him for any purpose (Sec. 67)

THE DANGEROUS DRUGS BOARD AND

PHILIPPINE DRUG ENFORCEMENT AGENCY
The Dangerous Drug Board
A. Function
The Dangerous Drug Board shall be the policy-making and strategy formulating
body in the planning and formulation of policies and programs on drug prevention
and control. (Sec. 77)
B. Composition
Under R.A. 6424 as amended, the Dangerous Drug board was composed of seven ex
officio members as follows: (a) The Minister of Health or his representative; (b) the
Minister of Justice or his representative; (c) The Minister of National Defense or his
representative; (d) The Minister of Education and Culture or his representative; (e)
The Minister of Finance or his representative; (f) The Minister of Social Service and
Development or his representative; and (g) The Minister of Local Government or his
representative (Sec. 35 Art. 8, R.A. 6424)
The Minister of Health shall be the Chairman of the Board and the Director of the
National Bureau of Investigation shall be the permanent consultant of the Board.
Under Section 78 of R.A. 9165, the membership of the Dangerous Drugs Board was
expanded to seventeen (17) members, three (3) of which are permanent members,
twelve (12) shall be in ex officio capacity, and the remaining two (2) shall be regular
members.
The three (3) permanent members, who shall possess At least seven-year training
andexperience in the field of dangerous drugs andin any of the following fields: in
law, medicine, criminology, psychology or social work, shall be appointed by the
President of the Philippines. The President shall designate a Chairman, who shall
have the rank of a secretary from among the three (3) permanent members who
shall serve for six (6) years. Of the two (2) other members, who shall have the rank
of undersecretary, one (1) shall serve for four (4) and the other for two (2) years.
Thereafter, the person appointed to succeed such members shall hold office for a
term of six (6) years and until their successors shall have been duly appointed and

qualified.
The other twelve (12) members who shall be ex officio members of the Board are
the following: (1) Secretary of the Department of Justice or his/her representative;
(2) Secretary of the Department of Health or his/her representative; (3) Secretary of
the Department of National Defense or his/her representative; (4) Secretary of the
Department of Finance or his/her representative; (5) Secretary of the Department of
Labor and Employment or his/her representative; (6) Secretary of the Department of
Interior and Local Government or his/her representative; (7) Secretary of the
Department of Social Welfare and Development or his/her representative; (8)
Secretary of the Department of Foreign Affairs or his/her representative; (9)
Secretary of the Department of Education or his/her representative; (10) Chairman
of the Commission of Higher Education or his/her representative; (11) Chairman of
the National Youth Commission; and (12) Director General of the Philippine Drug
Enforcement Agency.
Cabinet secretaries who are members of the Board may designate their duly
authorized and permanent representatives whose rank shall in no case be lower
than undersecretary.
The two (2) regular members shall be as follows: (a) The President of the Integrated
Bar of the Philippines; and (b) The chairman or president of a non- chairman or
president of a non- chairman or president of a non-government organization
involved in dangerous drug campaign to be appointed by the President of the
Philippines.

The Philippine Drug Enforcement Agency (PDEA)

A. Functions
Carry out the provision of the Dangerous Drug act of 2002. The Agency shall served
as the implementing arm of the Dangerous Drug Board, and shall be responsible for
the efficient and effective law enforcement of all provisions of any dangerous drug
and/or controlled precursor and essential chemicals as provided for in the Law. (Sec.
82). The existing Secretariat of the National Drug Law Enforcement and Prevention
Coordinating Center as created by Executive Order No. 61 is hereby modified and
absorbed by the PDEA (Sec. 83, R.A. 9165)
B.) Powers and Duties
a.) Implement or cause the efficient and effective implementation of the national
drug control strategy formulated by the Board thereby carrying out a national drug
campaign program which shall include drug law enforcement, control and
prevention campaign with the assistance of concerned government agencies;
b.) Undertake the enforcement of the provision of article II of this Act relative to the
unlawful acts and penalties involving any dangerous drug and/or controlled
precursor and essential chemical and investigate all violators and other matters

involved in the commission of any crime relative to the use, abuse or trafficking of
any dangerous drug and/or controlled precursor and essential chemicals as provided
for in this Act and the provisions of Presidential Decree No. 1619;
c.) Administer oath, issue subpoena and subpoena duces tecum relative to the
conduct of investigation involving violation of this Act;
d.) Arrest and apprehend as well as search all violators and seize or confiscate, the
effects or proceeds of the crime as provided by law and take custody thereof, for
this purpose the prosecutors and enforcement agents are authorized to possess
firearms, in accordance with the existing laws;
e.) Take charge and have custody of all dangerous drugs and/or controlled
precursors and essential chemicals seized, confiscated or surrendered to any
national, provincial or local law enforcement agency; if no longer needed for
purposes of evidence in court.
f.) Establish forensic laboratories in each PNP office in every province and city in
order to facilitate action on seized or confiscated drugs; thereby hastening its
destruction without delay;
g.) Recommend to the DOJ the forfeiture of properties and other assets of persons
and/or corporations found to be violating the provisions of this Act and in
accordance with the pertinent provisions of the Anti-Money Laundering Act of 2002.
h.) Prepare for prosecution or cause the filing of appropriate criminal and civil cases
for violation of laws on dangerous drugs, controlled precursors and essential
chemicals, and other similar controlled substance, and assist, support and
coordinate with other government agencies for the proper and effective prosecution
of the same;
i.) Monitor and if warranted by circumstances, in coordination with the Philippine
Postal Office and the Bureau of Customs, inspect all air cargo packages, parcels and
mails in the central post office, which appear from the packages and address itself
to be a possible importation of dangerous drugs and/or controlled precursors and
essential chemicals, through on-line or cyber shops via the internet or cyberspace;
j.) Conduct eradication programs to destroy wild or illegal growth of plants from
which dangerous drugs may be extracted;
k.) Initiate and undertake the formation of a nationwide organization which shall
coordinate and supervise all activities against drug abuse in every province, city,
municipality and barangay with active and direct participation of all such local
government units and non-governmental organizations, including the citizenry,
subject to the provisions of previously formulated programs of action against
dangerous drugs;
l.) Establish and maintain a national drug intelligence system in cooperation with
law enforcement agencies, other government agencies/offices and local
government units that will assist in its apprehension of big time drug lords;
m.) Established and maintain close coordination, cooperation and linkages with
international drug control and administration agencies and organization and
implement the applicable provisions of international conventions and agreement
related to dangerous drugs to which the Philippines is a signatory;

n.) Create and maintain an efficient special enforcement unit to conduct an

investigation, file charges and transmit evidence to the proper court, wherein
members of the said unit shall possess suitable and adequate firearms for their
protection in connection with the performance of their duties; Provided, That no
previous special permit for such possession shall be required;
o.) Require all government and private hospitals, clinics, doctors, dentists and other
practitioners to submit a report to it, in coordination with the Board, about all
dangerous drugs and/or controlled precursors and essential chemicals which they
have attended to for data and information purposes;
p.) Coordinate with the Board for the facilitation of the issuance of necessary
guidelines, rules and regulations for the proper implementation of this Act;
q.) Initiate and undertake a national campaign for drug prevention and drug control
programs, where it may enlist the assistance of any department, bureau, office,
agency, or instrumentality of the government, including government-owned and/or
controlled corporations, in the anti-illegal drugs drive, which may include the use of
their respective personnel, facilities, and resources for a more resolute detection
and investigation of drug-related crimes and prosecution of the drug traffickers; and
r.) Submit an annual and periodic report to the Board as may be required form time
to time, and perform such other functions as may be authorized or required under
existing laws and as directed by the President himself/herself or as recommended
by the congressional committees concerned.
Note:
There are however certain power and duties of the PDEA enumerated under Section
84 of R.A. 9165 which seems to overlap with the functions of prosecutors such as
(1) the preparation for prosecution or the causing of the filing of appropriate
criminal cases for violation of the Law; and (2) filing of charges and transmittal of
evidence to the proper court and which have to be clarified in the Implementing
Rules and Regulation that may be issued by the DDB and the PDEA later.

JURISDICTION OVER DRUG RELATED CASES

The Supreme Court shall designate special court from among the existing Regional
Trial Court in each judicial region to exclusively try and hear cases involving
violations of this Act. The number of courts designated in each judicial region shall
be based in their respective jurisdiction.
The DOJ shall designate special prosecutor to exclusively handle cases involving
violations of this Act.

PRELIMINARY INVESTIGATION
OF DANGEROUS DRUG CASES

The preliminary investigation of cases filed under this Act shall be terminated within
the period of thirty (30) days from the date of their filing
When the preliminary investigation is conducted by a public prosecutor and
probable cause is established, the corresponding information shall be filed in court
within twenty-four (24) hours from the termination of the investigation. If the
preliminary investigation is conducted by a judge and a probable cause is found to
exist, the corresponding information shall be filed by the proper prosecutor within
forty-eight (48) hours from the date of receipt of the records of the case. (Sec. 90)
The Department of Justice shall designate special prosecutors to exclusively handle
cases involving violations of the Dangerous Drug Act of 2002 (Sec. 90)
Notwithstanding the provision of any law to the contrary, a positive finding for the
use of dangerous drugs shall be a qualifying aggravating circumstance in the
commission of a crime by an offender, and the application of the penalty provided
for in the Revised Penal Code shall be applicable (Sec. 25)
Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act,
including the Properties or Proceeds Derived from the Illegal Trafficking of
Dangerous Drugs and/or Precursors and Essential Chemicals
Every penalty imposed for the unlawful importation, sale, trading, administration,
dispensation, delivery, distribution, transportation or manufacture of any dangerous
drug and/or controlled precursor and essential chemical, the cultivation or culture of
plants which are sources of dangerous drugs, and the possession of any equipment,
instrument, 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 unlawful act,
including, but not limited to, money and other assets obtained thereby, and the
instruments or tools with which the particular unlawful act was committed, unless
they are the property of a third person not liable for the unlawful act, but those
which are not of lawful commerce shall be ordered destroyed without delay
pursuant to the provisions of Section 21 of this Act.
After conviction in the Regional Trial Court in the appropriate criminal case filed, the
Court shall immediately schedule a hearing for the confiscation and forfeiture of all
the proceeds of the offense and all the assets and properties of the accused either
owned or held by him or in the name of some other persons if the same shall be
found to be manifestly out of proportion to his/her lawful income; Provided,
however, That if the forfeited property is a vehicle, the same shall be auctioned off
not later than five (5) days upon order of confiscation or forfeiture.

During the pendency of the case in the Regional Trial Court, no property, or income
derived thereform, which may be confiscated and forfeited, shall be disposed,
alienated or transferred and the same shall be in custodio legis and no bond shall
be admitted for the release of the same.
The proceeds of any sale or disposition of any property confiscated under this
section, forfeiture, custody and maintenance of the property pending disposition, as
well as the expense for publication and court costs. The proceeds in excess of the
above expenses shall accrue to the Board to be used in its campaign against illegal
drugs.

CUSTODY AND DISPOSITION OF CONFISCATED, SEIZED

AND/OR SURRENDERED DANGEROUS DRUGS, ETC.
The PDEA shall take charge and have custody of all dangerous drugs, plant sources
of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment that was confiscated,
seized and/or surrendered, for proper disposition in the following manner:
1. The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the
same in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative
from the media and the Department of Justice (DOJ) and any elected public official
who shall be required to sign the copies of the inventory and be given a copy
thereof;
2. Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as well
as instruments/paraphernalia and/or laboratory equipment, the same shall be
submitted to the PDEA Forensic Laboratory for a qualitative examination;
3. A certification of the forensic laboratory examination results, which shall be under
oath by the forensic laboratory examiner, shall be issued within twenty-four (24)
hours after the receipt of the subject items/s: Provided, that when the volume 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 by the forensic laboratory: Provided, however, that a
final certification on the same within the next twenty-four (24) hours;
4. After the filing of the criminal case, the Court shall within seventy-two (72) hours,
conduct an ocular inspection of the confiscated, seized and/or surrendered
dangerous drugs, plant sources of dangerous drugs, and controlled precursor and

essential chemicals, including the instruments/paraphernalia and/or laboratory

equipment, and through the PDEA shall within twenty-four (24) hours thereafter
proceed with the destruction or burning of the same, in the presence of the accused
or the person/s from which such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the DOJ, civil society
group and any elected public official. The Board shall draw up the guidelines on the
manner of proper disposition and destruction of such item/s which shall be borne by
the offender; Provided, That those item/s of lawful commerce, as determined by the
Board, shall be donated, used or recycled for legitimate purposes; Provided, further,
That a representative sample, duly weighed and recorded, is retained;
5. The Board shall then issue a sworn statement as to the fact of destruction or
burning of the subject item/s together with the representative sample/s shall be
kept to a minimum quantity as determined by the Board;
6. The alleged offender or his/her representative or counsel shall be allowed to
personally observe all of the above proceedings and his/her presence shall not
constitute an admission of guilt. In case the said offender or accused refuses or fails
to appoint a representative after due notice in writing to the accused or his/her
counsel within seventy-two (72) hours before the actual or destruction of the
evidence in question, the Secretary of Justice shall appoint a member of the public
attorneys office to represent the former;
7. After the promulgation of judgment in the criminal case wherein the
representative sample/s was presented as evidence in court, the trial prosecutor
shall inform the Board of the final termination of the case and in turn, shall request
the court for leave to turn over the said representative sample/s to the PDEA for
proper disposition and destruction within twenty-foru (24) hours from receipt of the
same; and
8. Transitory Provision: a.) Within twenty-four hours from the effectivity of this Act
(R.A. 9165), dangerous drugs defined herein which are presently in possession of
law enforcement agencies shall, with leave of court, be burned or destroyed, in the
presence of representative of the Court, DOJ, Department of Health (DOH) and the
accused and/or his/her counsel, and b.) Pending the organization of the PDEA, the
custody, disposition, and burning of seized or surrendered dangerous drugs
provided under this Section shall be implemented by the DOH (Sec. 21, Art. 2, R.A.
9165)

SUSPENSION OF SENTENCE OF
FIRST-TIME MINOR OFFENDER
An accused who is over fifteen (15) years of age at the time of the commission of

the offense mentioned in Section 11 of R.A. 9165 but not more that eighteen (18)
years of age at the time when the judgment should have been promulgated after
having been found guilty of said offense, may be given the benefits of a suspended
sentence, subject to the following conditions:
a.) He/She has not been previously convicted of violating any provision of this Act,
or of the Dangerous Drugs Act of 1972, as amended; or of the Revised Penal Code;
or any special penal laws;
b.) He/She has not been previously committed to a Center or to the care of a DOHaccredited physician; and
c.) The Board favorably recommends that his/her sentence be suspended.

PRIVILEGE OF SUSPENDED SENTENCE CAN BE AVAIL ONLY ONCE BY A FIRST-TIME

MINOR OFFENDER
The privilege of suspended sentence shall be availed of only once by accused drug
dependent who is a first-time offender over fifteen (15) years of age at the time of
the commission of the violation of Section 15 of this Act but not more than eighteen
(18) years of age at the time when judgment should have been promulgated. (Sec.
68)

PROMULAGATION OF SENTENCE
FOR FIRST-TIME OFFENDER
If the accused first-time minor offender violates any of the conditions of his/her
suspended sentence, the applicable rules and regulations of the Board exercising
supervision and rehabilitative surveillance over him, including the rules and
regulations of the Center should confinement be required, the court shall pronounce
judgment of conviction and he/she shall serve sentence as any other convicted
person. (Sec. 69)

PROBATION OR COMMUNITY SERVICE FOR A FIRST-TIME MINOR OFFENDER IN LIEU

OF IMPRISONMENT
Upon promulgation of the sentence, the court may, in its discretion, place the
accused under probation, even if the sentence provided under this Act is higher
than that provided under existing law on probation, or impose community service in
lieu of imprisonment. In case of probation, the supervision and rehabilitative
surveillance shall be undertaken by the Board through the DOH in coordination with
the Board of Pardons and Parole and the Probation Administration. Upon compliance
with the conditions of the probation, the Board shall submit a written report to the

court recommending termination of probation and a final discharge of the

probationer, whereupon the court shall issue such an order.
The community service shall be complied with under conditions, time and place as
may be determined by the court in its discretion and upon the recommendation of
the Board and shall apply only to violators of Section 15 of this Act. The completion
of the community service shall be under the supervision and rehabilitative
surveillance of the Board during the period required by the court. Thereafter, the
Board shall render a report on the manner of compliance of said community service.
The court in its discretion may require extension of the community service or order
a final discharge.
If the sentence promulgated by the court require imprisonment, the period spent in
the Center by the accused shall be deducted from the sentence to be served. ( Sec.
70)

WHAT ARE THE LIABILITY AND RESPONSIBILITY OF A MEMBER OF LAW

ENFORCEMENT AGENCIES AND OTHER GOVERNMENT OFFICIALS IN TESTIFYING AS
PROSECUTION WITNESSES IN DANGEROUS DRUG CASES?
Any member of law enforcement agencies or any other government official and
employee who, after due notice, fails or refuse intentionally or negligently, to
appear as a witness for the prosecution in any proceedings, involving violation of
this Act, without any valid reason shall be punished with imprisonment of not less
than twelve (12) years and one (1) day to twenty (20) years and a fine of not less
than Five hundred thousand pesos (P500,000.00), in addition to the administrative
liability he/she may be meted out by his/her immediate superior and/or appropriate
body.
The immediate superior of the member of the law enforcement agency or any other
government employee mentioned in the preceding paragraph shall be penalized
with imprisonment of not less than two (2) months and one (1) day but not more
than six (6) years and a fine of not less than ten thousand (P10,000.00) but not
more than Fifty thousand (P50,000.00) and in addition, perpetual absolute
disqualification from public office if despite due notice to them and to the witness
concerned the former does not exert reasonable effort to present the latter to the
court
The member of the law enforcement agency or any other government employee
mentioned in the proceeding paragraphs shall not be transferred or re-assigned to
any other government office located in another territorial jurisdiction during the
pendency of the case in court. However, the concerned member of the law
enforcement agency or government employee may be transferred or re-assigned for
compelling reason: Provided, that his/her immediate superior shall notify the court

where the case is pending of the order to transfer or re-assign, within twenty-four
(24) hours from its approval: Provided further, that his/her immediate superior shall
be penalized with imprisonment of not less than two (2) months and one (1)day but
not more than six (6) years and a fine of not less than two (2) months and one (1)
day but not more than six (6) years and a fine of not less than Ten thousand
(P10,000.00) but not more than Fifty thousand pesos (P50,000.00) and in addition,
perpetual absolute disqualification from public office, should he/she fails to notify
the court of such order to transfer or re-assign.

DELAY ANF BUNGLING IN THE

PROSECUTION OF DRUG CASES
Any government officer employee tasked with the prosecution of drug-related cases
under this Act, who through patent laxity, inexcusable neglect, unreasonable delay
or deliberately causes the unsuccessful prosecution and/or dismissal of the said
drug cases, shall suffer the penalty of imprisonment ranging from twelve (12) years
and one (1) day to twenty (20) years without prejudice to his/her prosecution under
the pertinent provision of the Revised Penal Code.

RECORDS TO BE KEPT BY THE

DEPARTMENT OF JUSTICE
The DOJ shall keep a confidential record of the proceedings on suspension of
sentence and shall not be used for any purpose other than to determine whether or
not a person accused under this Act is a first-time offender. (Sec. 71)

LIABILITY OF A PERSON WHO VIUOLATES

THE CONFIDENTIALITY OF RECORDS
The Penalty of imprisonment ranging from six (6) months and one (1) day to six (6)
years and a fine ranging from One thousand pesos (P1,000.00) to Six thousand
pesos (P6,000.00), shall be imposed upon any person who, having official custody of
or access to the confidential records of any drug dependent under voluntary
submission programs, or any one who, having gained possession of said records,
whether lawfully or not, reveals their content to any person other than those
charged with the prosecution of the offense under this Act and its implementation.
The maximum penalty shall be imposed, in addition to the absolute perpetual
disqualification from any public office, when the offender is a government official or
employee. Should the records be used for unlawful purposes, such as blackmail of
the drug defendant of the members of his/her family, the penalty imposed for the
crime of violation of confidentiality shall be in addition to whatever crime he/she

convicted of. (Sec. 72)

LIABILITY OF A PARENTS, SPOUSE OR

GUARDIAN WHO REFUSE TO COOPERATE
WITH THE BOARD OR ANY CONCERNED AGENCY
Any parent, spouse or guardian who, without valid reason parent, spouse or
guardian who, without valid reason, refuses to cooperate with the Board or any
concerned agency in the treatment and rehabilitation of a drug defendant who is a
minor, or in any manner, prevents or delay the after-care, follow-up or other
programs for the welfare of the accused drug defendant, whether under voluntary
submission program or compulsory submission program, may be cited in contempt
by the court.
COST-SHARING IN THE TREATMENT AND REHABILITATION OF A DRUG DEFENDENT
The parents, spouse, guardian or any relative within the fourth degree of
consanguinity of any person who is confined under the voluntary submission
program or compulsory submission program shall be charged a certain percentage
of the cost of his/her treatment and rehabilitation, the guidelines of which shall be
formulated by the DSWD taking into consideration the economic status of the family
of the person confined. The guidelines therein formulated shall be implemented by
a social worker of the local government unit. (Sec. 74)

LIMITED APPLICABILITY OF THE REVISED PENAL CODE

Notwithstanding any law, rule or regulation to the contrary, the provisions of the
Revised Penal Code (Act. 3814) as amended, shall not apply to the provision of this
Act, except in the case of minor offenders. Where the offender is a minor, the
penalty for acts punishable by life imprisonment to death provided therein shall be
reclusion perpetua to death. (Sec. 98)

EXCEPTION TO NECESSITY
OF A SEARCH WARRANT
There is no doubt that the warrantless search incidental to a lawful arrest authorizes
the arresting officer to make a search upon the person arrested. An officer making
an arrest may take from the person arrested any money or property found upon his
person which was used in the commission of the crime or was in fruit of the crime or
which might furnish the prisoner with the means of committing violence or of

escaping, which may be used as evidence in the trial of the case. (People v. Musa;
GR 96177, 1/27/93)

LIKE ALIBI, FRAME UP IS EASY

TO FABRICATE, BUT DIFFICULT
TO PROVE
Frame-up, like alibi, is a defense that has been viewed by courts with disfavor for it
can just as easily be connected and is a common and standard line of defense in
most prosecution arising from violations of the Dangerous Drugs Act. In order for
that defense to prosper, the evidence adduced must be clear and convincing.
(People v. Girang; GR 27949, 2/1/95)

BUY-BUST OPERATION
Is a form of entrapment employed by peace officers as an effective way of
apprehending a criminal in the act of the commission of the offense. Entrapment
has received judicial sanction as long as it is carried out with due regard to
constitutional and legal safeguards. (People v. Basilgo; GR 107327, 8/5/94)

POSEUR-BUYER, GENERALLY
NEED NOT TESTIFY
The testimony of the poseur-buyer or of the confidential informant is no longer
material considering that accused-appellants drug pushing was positively attested
to. Moreover, informants are generally not presumed in court because of the need
to hide their identity and preserve their invaluable service to the police. (People v.
Girang; GR 97949, 2/1/95)

EFFECT OF LIMITATION UNDER

SECTION 19, ART. VII OF THE
CONSTITUTION ON GRANT OF PARDON
The "conviction by final judgment" limitation under Section 19, Article VII of the
present Constitution prohibits the grant of pardon, whether full or conditional, to an
accused during the pendency of his appeal from his conviction by the trial court.

Any application therefor, if one is made, should not be acted upon or the process
toward its grant should not be begun unless the appeal is withdrawn. Accordingly,
the agencies or instrumentalities of the Government concerned must require proof
from the accused that he has not appealed from his conviction or that he has
withdrawn his appeal Such proof may be in the form of a certification issued by the
trial court or the appellate court, as the case may be The acceptance of the pardon
shall not operate as an abandonment or waiver of the appeal, and the release of an
accused by virtue of a pardon, commutation of sentence, or parole before the
withdrawal of an appeal shall render those responsible therefor administratively
liable Accordingly, those in custody of the accused must not solely rely on the
pardon as a basis for the release of the accused from confinement. (People v.
Maquilan)

RULE AS TO WHO SHOULD

BE CRIMINALLY CHARGED
The settled rule is that the determination of who should be criminally charged in
court is essentially an executive function, not a judicial one. As the officer
authorized to direct and control the prosecution of all criminal actions, the
prosecutor is tasked to ascertain whether there is sufficient ground to engender a
well-founded belief that an offense has been committed and that the accused is
probably guilty thereof. (People v. Esparas; GR 120034, July 10, 1998)

WHEN THERE IS A WAIVER

OF WARRANTLESS ARREST
The appellants are now precluded from assailing the warrantless search and seizure
when they voluntarily submitted to it as shown by their actuation during the search
and seizure. The appellants never protested when SPO3 Jesus Faller, after
identifying himself as a police officer, opened the tin can loaded in the appellants'
vehicle and found eight (8) bundles. And when Faller opened one of the bundles, it
smelled of marijuana. The NBI later confirmed the eight (8) bundles to be positive
for marijuana. Again, the appellants did not raise any protest when they, together
with their cargo of drugs and their vehicle, were brought to the police station for
investigation and subsequent prosecution. We have ruled in a long line of cases
that:
"When one voluntarily submits to a search or consents to have it made on his
person or premises, he is precluded from later complaining thereof (Cooley,
Constitutional Limitations, 8th ed., vol. I, page 631). The right to be secure from
unreasonable search may, like every right, be waived and such waiver may be
made either expressly or impliedly."

The appellants effectively waived their constitutional right against the search and
seizure in question by their voluntary submission to the jurisdiction of the trial court,
when they entered a plea of not guilty upon arraignment and by participating in the
trial. (People v. Correa; GR 119246, Jan. 30, 98)

WHEN USE OF MOTOR VEHICLE

IN DRUG CASES OR ANY OTHER
CASE IS NOT AGGRAVATING
Simply stated, the motor vehicle which was used to transport prohibited drugs was
not purposely sought to facilitate the commission of the crime since such act of
transporting constitutes the crime itself, punishable under Section 4, Article II of
Republic Act No. 6425, as amended. That a motor vehicle was used in committing
the crime is merely incidental to the act of transporting prohibited drugs. The use of
a motor vehicle is inherent in the crime of transporting as it must of necessity
accompany the commission thereof; hence, such use is not an aggravating
circumstance. (People v. Correa)

CASES WHEN WARRANTLESS SEARCH IS ALLOWED

1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule
126 of the Rules of Court and by prevailing jurisprudence;
2. Seizure of evidence in "plain view," the elements of which are:
(a) a prior valid intrusion based on the valid warrantless arrest in which the police
are legally present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who had the right to be
where they are;
(c) the evidence must be immediately apparent, and
(d) "plain view" justified mere seizure of evidence without further search;
3. Search of a moving vehicle. Highly regulated by the government, the vehicle's
inherent mobility reduces expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion amounting to probable cause
that the occupant committed a criminal activity;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and

7. Exigent and Emergency Circumstances.

(People v. Menguin; GR 120915, Apr. 13, 98)

CASES WHEN SEARCH WITHOUT

A WARRANT WAS VALID
In People v. Tangliben, acting on information supplied by informers, police officers
conducted a surveillance at the Victory Liner Terminal compound in San Fernando,
Pampanga against persons who may commit misdemeanors and also on those who
may be engaging in the traffic of dangerous drugs. At 9:30 in the evening, the
policemen noticed a person carrying a red travelling bag who was acting
suspiciously. They confronted him and requested him to open his bag but he
refused. He acceded later on when the policemen identified themselves. Inside the
bag were marijuana leaves wrapped in a plastic wrapper. The police officers only
knew of the activities of Tangliben on the night of his arrest.
In instant case, the apprehending officers already had prior knowledge from their
informant regarding Aruta's alleged activities. In Tangliben policemen were
confronted with an on-the-spot tip. Moreover, the policemen knew that the Victory
Liner compound is being used by drug traffickers as their "business address". More
significantly, Tangliben was acting suspiciously. His actuations and surrounding
circumstances led the policemen to reasonably suspect that Tangliben is committing
a crime. In instant case, there is no single indication that Aruta was acting
suspiciously.
In People v. Malmstedt, the Narcom agents received reports that vehicles coming
from Sagada were transporting marijuana. They likewise received information that a
Caucasian coming from Sagada had prohibited drugs on his person. There was no
reasonable time to obtain a search warrant, especially since the identity of the
suspect could not be readily ascertained. His actuations also aroused the suspicion
of the officers conducting the operation. The Court held that in light of such
circumstances, to deprive the agents of the ability and facility to act promptly,
including a search without a warrant, would be to sanction impotence and
ineffectiveness in law enforcement, to the detriment of society.
Note, however, the glaring differences of Malmstedt to the instant case. In present
case, the police officers had reasonable time within which to secure a search
warrant. Second, Aruta's identity was priorly ascertained. Third, Aruta was not
acting suspiciously. Fourth, Malmstedt was searched aboard a moving vehicle, a
legally accepted exception to the warrant requirement. Aruta, on the other hand,
was searched while about to cross a street.
In People v. Bagista, the NARCOM officers had probable cause to stop and search all

vehicles coming from the north to Acop, Tublay, Benguet in view of the confidential
information they received from their regular informant that a woman having the
same appearance as that of accused-appellant would be bringing marijuana from up
north. They likewise had probable cause to search accused-appellant's belongings
since she fitted the description given by the NARCOM informant. Since there was a
valid warrantless search by the NARCOM agents, any evidence obtained in the
course of said search is admissible against accused-appellant. Again, this case
differs from Aruta as this involves a search of a moving vehicle plus the fact that the
police officers erected a checkpoint. Both are exceptions to the requirements of a
search warrant.
In Manalili v. Court of Appeals and People, the policemen conducted a surveillance
in an area of the Kalookan Cemetery based on information that drug addicts were
roaming therein. Upon reaching the place, they chanced upon a man in front of the
cemetery who appeared to be "high" on drugs. He was observed to have reddish
eyes and to be walking in a swaying manner. Moreover, he appeared to be trying to
avoid the policemen. When approached and asked what he was holding in his
hands, he tried to resist. When he showed his wallet, it contained marijuana. The
Court held that the policemen had sufficient reason to accost accused-appellant to
determine if he was actually "high" on drugs due to his suspicious actuations,
coupled with the fact that based on information, this area was a haven for drug
addicts.
This case is similar to People v. Aminnudin where the police received information
two days before the arrival of Aminnudin that the latter would be arriving from Iloilo
on board the M/V Wilcon 9. His name was known, the vehicle was identified and the
date of arrival was certain. From the information they had received, the police could
have persuaded a judge that there was probable cause, indeed, to justify the
issuance of a warrant. Instead of securing a warrant first, they proceeded to
apprehend Aminnudin. When the case was brought before this Court, the arrest was
held to be illegal; hence any item seized from Aminnudin could not be used against
him.
Another recent case is People v. Encinada where the police likewise received
confidential information the day before at 4:00 in the afternoon from their informant
that Encinada would be bringing in marijuana from Cebu City on board M/V Sweet
Pearl at 7:00 in the morning of the following day. This intelligence information
regarding the culprit's identity, the particular crime he allegedly committed and his
exact whereabouts could have been a basis of probable cause for the lawmen to
secure a warrant. This Court held that in accordance with Administrative Circular No.
13 and Circular No. 19, series of 1987, the lawmen could have applied for a warrant
even after court hours. The failure or neglect to secure one cannot serve as an
excuse for violating Encinada's constitutional right.

People v. Solayao, applied the stop and frisk principle which has been adopted in
Posadas v. Court of Appeals. In said case, Solayao attempted to flee when he and
his companions were accosted by government agents. In the instant case, there was
no observable manifestation that could have aroused the suspicion of the NARCOM
agents as to cause them to "stop and frisk" accused-appellant. To reiterate,
accused-appellant was merely crossing the street when apprehended. Unlike in the
abovementioned cases, accused-appellant never attempted to flee from the
NARCOM agents when the latter identified themselves as such. Clearly, this is
another indication of the paucity of probable cause that would sufficiently provoke a
suspicion that accused-appellant was committing a crime.
This Court cannot agree with the Solicitor General's contention for the Malasugui
case is inapplicable to the instant case. In said case, there was probable cause for
the warrantless arrest thereby making the warrantless search effected immediately
thereafter equally lawful. On the contrary, the most essential element of probable
cause, as expounded above in detail, is wanting in the instant case making the
warrantless arrest unjustified and illegal. Accordingly, the search which
accompanied the warrantless arrest was likewise unjustified and illegal. Thus, all the
articles seized from the accused-appellant could not be used as evidence against
her. (People v. Menguin)

WHEN SEARCH IS NOT VALID

Accused-appellant Aruta cannot be said to be committing a crime. Neither was she
about to commit one nor had she just committed a crime. Accused-appellant was
merely crossing the street and was not acting in any manner that would engender a
reasonable ground for the NARCOM agents to suspect and conclude that she was
committing a crime. It was only when the informant pointed to accused-appellant
and identified her to the agents as the carrier of the marijuana that she was singled
out as the suspect. The NARCOM agents would not have apprehended accusedappellant were it not for the furtive finger of the informant because, as clearly
illustrated by the evidence on record, there was no reason whatsoever for them to
suspect that accused-appellant was committing a crime, except for the pointing
finger of the informant. This the Court could neither sanction nor tolerate as it is a
clear violation of the constitutional guarantee against unreasonable search and
seizure. Neither was there any semblance of any compliance with the rigid
requirements of probable cause and warrantless arrests.
Consequently, there was no legal basis for the NARCOM agents to effect a
warrantless search of accused-appellant's bag, there being no probable cause and
the accused-appellant not having been lawfully arrested. Stated otherwise, the
arrest being incipiently illegal, it logically follows that the subsequent search was
similarly illegal, it being not incidental to a lawful arrest. The constitutional

guarantee against unreasonable search and seizure must perforce operate in favor
of accused-appellant. As such, the articles seized could not be used as evidence
against accused-appellant for these are "fruits of a poisoned tree" and, therefore,
must b
ejected, pursuant to Article III, Sec. 3(2) of the Constitution. (People v. Menguin)

WHEN VOLUNTARY SUBMISSION

TO SEARCH IS INAPPLICABLE
Aside from the inapplicability of the abovecited case, the act of herein accusedappellant in handing over her bag to the NARCOM agents could not be construed as
voluntary submission or an implied acquiescence to the unreasonable search. The
instant case is similar to People v. Encinada. (People v. Menguin)
WHEN SEARCH IS NOT
ALLOWED AFTER
AN ARREST IS MADE
In the case of People v. Lua, this Court held:
"As regards the brick of marijuana found inside the appellant's house, the trial court
correctly ignored it apparently in view of its inadmissibility. While initially the arrest
as well as the body search was lawful, the warrantless search made inside the
appellant's house became unlawful since the police operatives were not armed with
a search warrant. Such search cannot fall under "search made incidental to a lawful
arrest," the same being limited to body search and to that point within reach or
control of the person arrested, or that which may furnish him with the means of
committing violence or of escaping. In the case at bar, appellant was admittedly
outside his house when he was arrested. Hence, it can hardly be said that the inner
portion of his house was within his reach or control.
(Espano v. C.A.; GR 120431, April 1, 98)

MEANING OF TO TRANSPORT
IN DRUG CASES
In People vs. Lo Ho Wing, the Court defined the term "transport", as used under the
Dangerous Drugs Act to mean "to carry or convey from one place to another" , the
operative words being "to carry or to convey". The fact that there is actual
conveyance suffices to support a finding that the act of transporting was
committed. It is immaterial whether or not the place of destination was reached.

(People v. Latura)

WHEN POLICE OFFICERS INTENTIONALLY PEEPED THRU A WINDOW THEN WENT

INSIDE AND ARRESTED THOSE INSIDE WHO ARE PACKING MARIJUANA. THE SAME IS
ILLEGAL
The police officers intentionally peeped first through the window before they saw
and ascertained the activities of accused-appellants inside the room. In like manner,
the search cannot be categorized as a search of a moving vehicle, a consented
warrantless search, a customs search, or a stop and frisk; it cannot even fall under
exigent and emergency circumstances, for the evidence at hand is bereft of any
such showing.
On the contrary, it indicates that the apprehending officers should have conducted
first a surveillance considering that the identities and address of the suspected
culprits were already ascertained. After conducting the surveillance and determining
the existence of probable cause for arresting accused-appellants, they should have
secured a search warrant prior to effecting a valid arrest and seizure. The arrest
being illegal ab initio, the accompanying search was likewise illegal. Every evidence
thus obtained during the illegal search cannot be used against accused-appellants;
hence, their acquittal must follow in faithful obeisance to the fundamental law. (PP
-vs- ZENAIDA BOLASA Y NAKOBOAN, ET AL., G.R. No. 125754, Dec. 22, 1999)

SEARCH AND SEIZURE WITHOUT THE REQUISITE JUDICIAL WARRANT IS ILLEGAL AND
VOID AB INITIO
As a general rule, the procurement of a search warrant is required before law
enforcer may validly search or seize the person, house, papers or effects of any
individual. In People v. Valdez, the court ruled that search and seizure conducted
without the requisite judicial warrant is illegal and void ab initio.

xxx
Lawmen cannot be allowed to violate the very law they are expected to enforce.
The Court is not unmindful of the difficulties of law enforcement agencies in
suppressing the illegal traffic of dangerous drugs. However, quick solutions of
crimes and apprehension of malefactors do not justify a callous disregard of the Bill
of Rights. We need not underscore that the protection against illegal search and
seizures is constitutionally mandated and only under specific instances are seizures
allowed without warrants.

In this case, the prosecutions evidence clearly established that the police
conducted a search of accuseds backyard garden without warrant; they had
sufficient time to obtain a search warrant; they failed to secure one. There was no
showing of urgency or necessity for the warrantless search, or the immediate
seizure of the marijuana plants. (People vs. Alberto Pasudag)