UPDATED

SPECIAL PENAL LAWS

By:
JUDGE OSCAR B. PIMENTEL
Regional Trial Court, Branch 148,
Makati City

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
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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.

b.
c.
d.
e.
f.
g.

h.
i.
j.

Offenses
punished
by
death
or
life
imprisonment.
Those convicted of treason (Art. 114),
conspiracy or proposal to commit treason (Art.
115).
Those convicted of misprision of treason (Art.
116), rebellion (Art. 134), sedition (Art. 139),
or espionage (Art. 117).
Those convicted of piracy (Art. 122).
Habitual delinquents (Art. 62, par. 5).
Those who escaped from confinement or those
who evaded sentence.
Those granted conditional pardon and who
violated the terms of the same (Art. 159).
(People v. Corral, 74 Phil. 359).
Those whose maximum period of imprisonment
does not
exceed one year.
Those who are already serving final judgment
upon the
approval of the Indeterminate
Sentence Law.
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, L-28547, 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 -vs- Rolando Corpuz,
231 SCRA 480)

JUDY JOBY LOPEZ VS. PEOPLE OF THE PHILIPPINES, G.R.

NO. 166810, JUNE 26, 2008

The Indeterminate Sentence Law provides that if an

offense is punished by the Revised Penal Code or its

amendments, the court shall sentence the accused to an
indeterminate penalty, the maximum term of which shall be
that which, in view of the attending circumstances, can be
properly imposed under the rules of the Revised Penal Code,
while the minimum term of which shall be within the range of
the penalty next lower to that prescribed by the Code for the
offense.

Under Article 315, as amended by P.D. No. 818, the

penalty of reclusion temporal is imposed if the amount
defraud is over P12,000.00 but does not exceed P22,000.00.
The amount involved in this case is within the abovementioned range. Applying the Indeterminate Sentence Law,
the maximum imposable penalty is reclusion temporal while
the minimum term should be within the range of the penalty
next lower to that prescribed by the Code for the offense,
which is prision mayor. Thus, the CA correctly affirmed the
penalty imposed by the trial court which is six (6) years and
one (1) day of prision mayor as minimum to twelve years
(12) and one (1) day of reclusion temporal as maximum.

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 OF PETITION

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.
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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 PRIVILEGES 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 a
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 )

10

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, and as the penalty is probationable,
and the appellate court sustains the accused, he is deemed
to have abandoned his right to probation. 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.

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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 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:

12

"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 involve 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

13

BUT A PRIVILEGE

Probation is a mere privilege and its grant rest 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,

14

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

15

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.
They 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

16

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
TERMINATION, ORDER OF COURT REQUIRED

IS

NOT

The mere expiration of the period for probation does

not, ipso facto, terminate the probation. Probation is not coterminus with its period, there must be an order from the
Court of final discharge, terminating the probation. If the
17

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).
Santos v. Cruz-Pano, 1/17/83
Probation is a mere privilege and its grant rests solely
upon the discretion of the court. As aptly noted in U.S. vs.
Durkem, 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.
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.
IT IS NOT THE TOTALITY OF THE PENALTIES IMPOSED FOR
ALL CASES THAT DETERMINES WHETHER THE CASE IS
PROBATIONABLE OR NOT.

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 correccinal 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)

18

different, separate days, he was still eligible for probation, as

each prison term imposed on petitioner was probationable.
(Francisco vs. CA 4/15/1995)

ANTI-FENCING LAW
OF 1979 (PD NO. 1612)
DEFINITION

Fencing as defined in Sec. 2 of PD No. 1612 (AntiFencing 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 THE ANTI-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,
19

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;

20

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
PARTICULARLY SECOND HAND GOODS

OF

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;

21

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:

22

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.

23

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 OF FENCING

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;
24

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
25

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 AntiFencing Law. The crimes punishable by special laws are called
26

"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

27

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..."

28

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

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 in Pasay Road, Makati. The said stereo was bought
from Wynns 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. Consuji, Inc., later found to
be in premise 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 to be
proven in crimes punishable by a special law such as the AntiFencing 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

29

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 ulawful
act. (Cunlao v. CA) again, intent to gain is a mental state,
the existence of which is demonstrated by the overt acts as
person, as the keeping of stolen items for subsequent selling.
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 1612 creates a presumption of
fencing and prescribes a higher penalty based on the value of
the property. (supra)
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
30

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 OF BP 22

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

31

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)

32

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
OF THE LAW AND ITS PURPOSE

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 CRIMINALLY 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.

33

RULE ON RENDERING UNJUST

JUDGMENT, IGNORANCE, ETC.
BY A JUDGE

In the case of De la Cruz vs. Concepcion

declared:

this Court

"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)

34

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. (Now, MTC,
MCTC or MeTC)
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

35

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 (now, MeTC) 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 (MeTC).
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 preexisting 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)

36

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)
THE PENALTY OF IMPRISONMENT IN CASES
VIOLATION OF B.P. 22 WAS NOT DELETED.

OF

A
word on the modified penalty imposed by the RTC. Contrary

37

to its reasoning, the penalty of imprisonment in cases of

violation of B.P. 22 was not deleted. As clarified by
Administrative Circular 13-2001, the clear tenor and intention
of Administrative Circular 12-2000 is not to remove
imprisonment as an alternative penalty, but to lay down a rule
of preference in the application of the penaltie provided for in
B.P. 22.
(Bernardo vs. People, G.R. No. 166980, April 3, 2007)

THE 90-DAY PERIOD IS NOT AN ELEMENT OF THE OFFENSE

In
Wong v. Court of Appeals, the Court ruled that the 90-day
period provided in the law is not an element of the offense.
Neither does it discharge petitioner from his duty to maintain
sufficient funds in the account within a reasonable time from
the date indicated in the check. According to current banking
practice, the reasonable period within which to present a
check to the drawee bank is six months. Thereafter, the check
becomes stale and the drawer is discharged from liability
thereon to the extent of the loss caused by the delay. (Arceo,
Jr. vs. People, G.R. No. 142641, July 17, 2009)
VIOLATION OF B.P. 22

Where a creditor has collected more than a sufficient amount

to cover the value of the checks, charging the debtor with a
criminal offense under the Bouncing checks Law a long time
after the collection is no longer tenable nor justified by law or
equitable consideration is not a Violation of BP 22.
(Cruz vs. Cruz, G.R. No. 154128, February 8, 2007)
While indeed the gravamen of violation of B.P. Blg. 22 is the
act of issuing worthless checks, considering that, in this case,
petitioner had paid the amount of the check even before
respondent filed his complaint, we believe and so hold that no
injury was caused to the public interests or the banking
system, or specifically to herein respondent. While indeed
the gravamen of violation of B.P. Blg. 22 is the act of issuing
worthless checks, nonetheless, courts should not apply the
law strictly or harshly. Its spirit and purpose must be
considered.

38

In Lozano v. Martinez (146 SCRA 323) we held that the

Bouncing Checks Law is aimed at putting a stop to or curbing
the practice of issuing worthless checks or those that end up
being dishonored for payment because of the injury it causes
to the public interests. In Sia v. People (428 SCRA 206) we
explained that the law is intended to safeguard the interests
of the banking system and the legitimate checking account
users.
Considering that petitioner had paid the amount of the
check even before respondent filed his complaint, we believe
and so hold that no injury was caused to the public interests
or the banking system, or specifically to herein respondent.
(Cruz vs. Cruz, G.R. No. 154128, February 8, 2007)
BP 22 INCLUDES THE MAKING AND ISSUANCE OF A
CHECK BY ONE WHO HAS NO ACCOUNT WITH A BANK

The law is broad enough to include, within its coverage,

the making and issuance of a check by one who has no
account with a bank, or where such account has already been
closed when the check was presented for payment. As the
Court in Lozano explained: The effect of the issuance of a
wortheless checks transcends the private interests of the
parties directly involved in the transaction and touches the
interests of the community at large. The mischief it creates is
not only a wrong to the payee or holder, but also an injury to
the public. The harmful practice of putting valueless
commercial papers in circulation, multiplied a thousandfold,
can very well pollute the channels of trade and commerce,
injure the banking system and eventually hurt the welfare of
society and the public interest. Considering that the law
imposes a penal sanction on one who draws and issues a
worthless checks against insufficient funds or a closed
account in the drawee bank, there is likewise, every reason to
penalize a person who indulges in the making and issuing of a
check on an account belonging to another with the latters
consent, which account has been closed or has no funds or
credit with the drawee bank. (Ruiz vs. People, G.R. No.
160893, November 18, 2005)
RICARDO SUAREZ VS. PEOPLE OF THE PHILIPPINES,
G.R. 172573, June 19, 2008

39

To commit a violation of B.P. Blg. 22, the following

elements must be present and proved:
1.

the making, drawing and issuance of any

check to apply for account or for value;
2.
the knowledge of the maker, drawer, or
issuer that at the time of issue 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
3.the subsequent dishonor of the check by the
drawee bank for insufficiency of funds or credit
or dishonor for the same reason had not the
drawer, without any valid cause, ordered the
bank to stop payment.
B.P. Blg. 22 creates a presumption of knowledge of
insufficiency of funds under the following circumstances:
Sec. 2. Evidence of knowledge of insufficient
funds. The making, drawing, and issuance of
a check payment of which is refused by the
drawee because of insufficient funds or credit
with such bank, when presented within ninety
days from the date of the check, shall be prima
facie
evidence
of
knowledge
of
such
insufficiency of funds or credit unless such
maker or drawer pays the holder thereof the
amount due thereon, or makes arrangements
for payment in full by the drawee of such check
within five (5) banking days after receiving
notice that such check has not been paid by
the drawee.
The presumption arises when it is proved that the issuer
had received this notice, and that within five banking days
from its receipt, he failed to pay the amount of the check or
to make arrangements for its payment. The full payment of
the amount appearing in the check within five banking days
from notice of dishonor is a complete defense. Accordingly,
procedural due process requires that a notice of dishonor be
sent to and received by the petitioner to afford the
opportunity to avert prosecution under B.P. Blg. 22.

40

JOHN DY VS. PEOPLE OF THE PHILIPPINES, G.R. NO.

158312, NOVEMBER 14, 2008

To be liable under Section 1 of B.P. Blg. 22, the check

must be dishonored by the drawee bank for insufficiency of
funds or credit or dishonored for the same reason had not the
drawer, without any valid cause, ordered the bank to stop
payment.
Significantly, like Article 315 of the Revised Penal Code,
B.P. Blg. 22 also speaks only of insufficiency of funds and
does not treat of uncollected deposits. To repeat, we cannot
interpret the law in such a way as to expand its provision to
encompass the situation of uncollected deposits because it
would make the law more onerous on the part of the
accused. Again, criminal statutes are strictly construed
against the Government and liberally in favor of the accused.

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.

41

(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
42

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 by 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
value shall be offered or given as a
gratitude or friendship according to
shall be exempted from the provision

of small or insignificant
mere ordinary token of
local customs or usage
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).

43

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.
44

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

45

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 abovedescribed 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 re-election 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

46

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. MTJ98-1147, 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

47

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

48

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
49

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)
(2)
(3)
(4)

That the accused is a public officer or a private person

charged in conspiracy with the former;
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;
That he or she causes undue injury to any party,
whether the government or a private party; and
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

50

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;

51

3)

4)

Reasonable time has elapsed from such

demand or request without the public officer
having acted on the matter pending before
him; and
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)

52

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)
SECTION 3(B), RA 3019
ELEMENTS
1. The offender is a public officer
2. Who requested or received a gift, a present, a share, a
percentage, or a benefit
3. On behalf of the offender or any other person
4. In connection with a contract or transaction with the
government
5. In which the public officer, in an official capacity under the
law, has the right to intervene.
(Garcia vs. Sandiganbayan, G.R. No. 155574, November 20, 2006)

SECTION 3(h) of the Anti-Graft Law

ESSENTIAL ELEMENTS

1. The accused is a public officer;

2. He has a direct or indirect financial or pecuniary interest in
any business, contract or transaction;
3. He either:
a. Intervenes or takes part in his official capacity in
connection with such interest; or

53

b. Is prohibited from having

Constitution or by law.

such

interest

by

the

TWO MODES BY WHICH A PUBLIC OFFICER MAY VIOLATE

SEC. 3(H) OF RA 3019

In other words, there are two modes by which a public

officer who has a direct or indirect financial or pecuniary
interest in any business contract or transaction may violate
Sec. 3(h) of RA 3019. The first mode is when the public
officer intervenes or takes part in his official capacity in
connection with his financial or pecuniary interest in any
business, contract or transaction. The second mode is when
he is prohibited from having such an interest by the
Constitution or by law. (Domingo vs. Sandiganbayan, G.R.
149175, October 25, 2005)
THE PRESCRIPTIVE PERIOD FOR THE OFFENSES SHOULD BE
COMPUTED FROM THE DISCOVERY OF THE COMMISSION
THEREOF

The issue of prescription has long been laid to rest in

the aforementioned Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto, where the Court
held:
x x x it was well-nigh impossible for the State, the
aggrieved party, to have known the violations of R.A.
No. 3019 at the time the questioned transactions
were made because, as alleged, the public officials
concerned
connived
or
conspired
with
the
"beneficiaries of the loans.' Thus, we agree with the
COMMITTEE that the prescriptive period for the
offenses with which respondents in OMB-0-96-0968
were charged should be computed from the discovery
of the commission thereof and not from the day of
such commission.
The assertion by the Ombudsman that the phrase 'if
the same not be known' in Section 2 of Act No. 3326
does not mean 'lack of knowledge' but that the crime
'is not reasonably knowable' is unacceptable, as it
provides an interpretation that defeats or negates the
intent of the law, which is written in a clear and

54

unambiguous language and thus provides no room for

interpretation but only application.

As to when the period of prescription was interrupted,

the second paragraph of Section 2, Act No. 3326, as
amended, provides that prescription is interrupted 'when
proceedings are instituted against the guilty person.
Records show that the act complained of was discovered
in 1992. The complaint was filed with the Office of the
Ombudsman on April 5, 1995, or within three (3) years from
the time of discovery. Thus, the filing of the complaint was
well within the prescriptive period of 15 years. (PCGG vs.
Desierto, G.R. No. 140231, July 9, 2007)
JURISPRUDENCE:
LINDA CADIAO-PALACIOS VS. PEOPLE, G.R. NO. 168544,
MARCH 31, 2009

Section 3(b) penalizes three distinct acts 1)

demanding or requesting; 2) receiving; or 3) demanding,
requesting and receiving any gift, present, share,
percentage, or benefit for oneself or for any other person, in
connection with any contract or transaction between the
government and any other party, wherein a public officer in
an official capacity has to intervene under the law. Each of
these modes of committing the offense is distinct and
different from one another. Proof of existence of any of them
suffices to warrant conviction.
PEOPLE VS. ROMUALDEZ, G.R. NO. 166510, APRIL 29, 2009

The initial filing of the complaint in 1989 or the

preliminary investigation by the PCGG that preceded it could
not have interrupted the fifteen (15)-year prescription period
under Rep. Act No. 3019. As held in Cruz, Jr. v.
Sandiganbayan, the investigatory power of the PCGG
extended only to alleged ill-gotten wealth cases, absent
previous authority from the President for the PCGG to
investigate such graft and corruption cases involving the
Marcos cronies. Accordingly, the preliminary investigation
conducted by the PCGG leading to the filing of the first
information is void ab initio, and thus could not be considered

55

as having tolled the fifteen (15)-year prescriptive period,

notwithstanding the general rule that the commencement of
preliminary investigation tolls the prescriptive period. After
all, a void ab initio proceeding such as the first preliminary
investigation by the PCGG could not be accorded any legal
effect by this Court.
The rule is that for criminal violations of Rep. Act No.
3019, the prescriptive period is tolled only when the Office of
the Ombudsman receives a complaint or otherwise initiates its
investigation. As such preliminary investigation was
commenced more than fifteen (15) years after the imputed
acts were committed, the offense had already prescribed as
of such time.
Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2,
1998) (see also sec. 13)
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.
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 the period; otherwise, it will continue for
ninety (90) days.

56

Conducto v. Monzon, (291 scra 619)

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
comm.itted during the Maghirangs 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.
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

57

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:
58

"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.
59

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)

60

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)
(2)
(3)
(4)
(5)
(6)

(7)
(8)

Treason (Sec. 2);

Qualified piracy (Sec. 3);
Parricide (Sec. 5);
Murder (Sec. 6);
Infanticide (Sec. 7);
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);
Robbery with homicide, rape or intentional
mutilation (Sec. 9);
Destructive arson if what is burned is (a) one or
more buildings or edifice; (b) a building where

61

(9)

(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)

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);
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);
Plunder involving at least P50 million (Sec. 12);
Importation of prohibited drugs
(Sec. 13);
Sale, administration, delivery, distribution, and
transportation of prohibited drugs (id.);
Maintenance of den, dive or resort for users of
prohibited drugs (id.);
Manufacture of prohibited drugs (id.);
Possession or use of prohibited drugs in certain
specified amounts (id.);
Cultivation of plants which are sources of prohibited
drugs (id.)
Importation of regulated drugs
(Sec. 14);
Manufacture of regulated drugs (id.);
Sale,
administration,
dispensation,
delivery,
transportation, and distribution of regulated drugs
(id.);
Maintenance of den, dive, or resort for users of
regulated drugs (Sec. 15);
Possession or use of regulated drugs in specified
amounts (Sec. 16);
Misappropriation, misapplication or failure to
account dangerous drugs confiscated by the
arresting officer (Sec. 17);
Planting evidence of dangerous drugs in person or
immediate vicinity of another to implicate the latter
(Sec. 19); and
Carnapping where the owner, driver or occupant of
the carnapped motor vehicle is killed or raped (Sec.
20).
(People v. Echegaray)

62

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

63

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,

64

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)

65

(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

66

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
67

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
68

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
69

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;

70

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
ELEMENT OF KIDNAPPING

LOCKING

UP,

AN

ESSENTIAL

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

71

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.
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

72

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)
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)

73

REPUBLIC ACT 9346

AN ACT PROHIBITING THE IMPOSITION OF
DEATH PENALTY IN THE PHILIPPINES
DEATH PENALTY IS PROHIBITED
The imposition of the penalty of death is hereby prohibited.
Accordingly, Republic Act No. 8177, otherwise known as the Act
Designating Death by lethal injection is hereby repealed. Republic
Act No. 7659, otherwise known as the Death Penalty Law, and all
other laws, executive orders and decrees, insofar as they impose
the death penalty are hereby repealed or amended accordingly.
(Sec. 1)
PENALTIES OF TO IMPOSED INSTEAD OF DEATH

In lieu of the death penalty, the following shall be

imposed:
a) The penalty of reclusion perpetua, when the law
violated makes use of the nomenclature of the
penalties of the Revised Penal Code;
b) The penalty of life imprisonment, when the law
violated does not make use of the nomenclature of
the penalties of the Revised Penal Code. (Sec. 2)
NOT ELIGIBLE FOR PAROLE

Person convicted of offenses punished with reclusion

perpetua, or whose sentences will be reduced to reclusion
perpetua, by reason of this Act, shall not be eligible for parole
under Act No. 4180, otherwise known as the Indeterminate
Sentence Law, as amended. (Sec. 3)
The Board of Pardons and Parole shall cause the
publication at least once a week for three consecutive weeks
in a newspaper of general circulation of the names of persons
convicted of offenses punished with reclusion perpetua or life
imprisonment by reason of this Act who are being considered
or recommended for commutation or pardon; Provided,
however, That nothing herein shall limit the power of the
President to grant executive clemency under Section 19,
Article VII of the Constitution. (Sec. 4)

74

DISQUALIFICATION OF A JUVENILE CONVICTED OF AN

OFFENSE PUNISHABLE BY DEATH, LIFE IMPRISONMENT OR
RECLUSION PERPETUA FROM AVAILING BENEFITS OF A
SUSPENDED SENTENCE

The law merely amended Article 192 of P.D. No. 603, as

amended by A.M. No. 02-1-18-SC, in that the suspension of
sentence shall be enjoyed by the juvenile even if he is already
18 years of age or more at the time of the pronouncement of
his/her guilt. The other disqualifications in Article 192 of P.D.
No. 603, as amended, and Section 32 of A.M. No. 02-1-18-SC
have not been deleted from Section 38 of Rep. Act No. 9344.
Evidently, the intention of Congress was to maintain the other
disqualifications as provided in Article 192 of P.D. No. 603, as
amended, and Section 32 of A.M. No. 02-1-18-SC. Hence,
juveniles who have been convicted of a crime the imposable
penalty for which is reclusion perpetua, life imprisonment or
reclusion perpetua to death or death are disqualified from
having their sentences suspended.
(Declarador vs. Hon.
Gubaton, G.R. No. 159208, August 18, 2006)

ILLEGAL POSSESSION OF FIREARMS

(REPUBLIC ACT NO. 8294)

SECTION 1.Section 1 Presidential Decree No. 1866,

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.
75

as

"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."

76

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."

77

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)

78

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.
79

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 the 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. Tac-an 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

80

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

81

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
82

possession, although what we will discuss hereunder

applies to manufacture, dealing in, acquiring or disposing
as well.
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.
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).
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)
83

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.
i.

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.

84

1.4

What the prosecution must prove for it to

succeed under the law is two-fold: 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 low-powered 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
testimony 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 and 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

85

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 highpowered 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
86

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. 13185657 (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
87

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.

88

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
89

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
90

violation of the Revised Penal Code may now be applied for

violation of PD 1866, as amended, and Republic 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.

91

(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.
A may be
convicted.
(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 -vsMeriato Molina, et al., G.R. No. 115835, July 22, 1998; People -vsNarvasa, G.R. no. 128618 November 18, 1998)

The
Decision of the Supreme Court in People -vsPaterno 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)

92

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 crimes, 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 highpowered 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,
93

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
POSSESSION OF FIREARMS)

ON

PD

1866

(ILLEGAL

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

94

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)

95

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

96

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)
JURISPRUDENCE:

People vs. Macasaling, 237 SCRA 299

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 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 Reynaldo Cruz, G.R. No. 76728, August 3,
1988
Ownership of the gun is immaterial or irrelevant in
violation of PD 1866, as amended. One may be convicted of
97

possession of an unlicensed firearm even if he is not the owner

thereof.
People vs Filemon Ramos, 222SCRA 557
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. Walpan Ladjaamlam, et al., G.R. No. 136149-51,
September 19, 2000

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 unlicensed firearm is neither an
aggravating circumstances nor a separate offenses. Since the
law used the word Homicide of Murder, possession of an
unlicensed firearm is not aggravating in Attempted Homicide.
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?
Ernesto Cuenca vs. People, 33 SCRA 522

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 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.
People vs. Perlito Soyang, et al., 110 Phil. 565, 583
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 of the Philippines vs. Bernie Cortez y Natanio,
et.al., G.R. Nos. 131619-20, Feb. 1, 2000

98

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.
People of the Philippines vs. Augusto Loreto Ringor,
G.R. No. 123918, December 9, 1999
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.
ANTI-WIRE TAPPING LAW
(RA 4200)
It shall be unlawful for any person, not being
authorized by all the parties to any private communication or
spoken word, to tap any wire or cable, or by using any other
device or arrangement, to secretly overhear, intercept, or
record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or
dectaphone or walkie-talkie or tape recorder, or however
otherwise described:
Sec. 1.

It shall also be unlawful for any person, be he a

participant or not in the act or acts penalized in the next

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preceding sentence, to knowingly possess any tape record,

wire record, disc record, or any other such record, or copies
thereof, of any communication or spoken word secured either
before or after the effective date of this Act in the manner
prohibited by this law; or to replay the same for any other
person or persons; or to communicate the contents thereof,
either verbally or in writing, or to furnish transcriptions
thereof, whether complete or partial, to any other person:
Provided, That the use of such record or any copies thereof as
evidence in any civil, criminal investigation or trial of offenses
mentioned in section 3 hereof, shall not be covered by this
prohibition.
LISTENING TO CONVERSATION
IN EXTENSION LINE OF TELEPHONE
IS NOT WIRE-TAPPING

An extension telephone cannot be placed in the same

category as a dictaphone, dictagraph or the other devices
enumerated in Section 1 of RA 4200 as the use thereof
cannot be considered as tapping the wire or cable of a
telephone line. The telephone extension in this case was not
installed for that purpose. It just happened to be there for
ordinary office use. It is a rule in statutory construction that
in order to determine the true intent of the legislature, the
particular clauses and phrases of the statute should not be
taken as detached and isolated expressions, but the whole
and every part thereof must be considered in fixing the
meaning of any of its parts. (66 SCRA 113,120)
A PERSON CALLING ANOTHER BY PHONE
MAY SAFELY PRESUME THAT THE OTHER
MAY HAVE AN EXTENSION LINE AND
RUNS THE RISK OF BEING HEARD BY A
3RD PARTY.

An extension telephone is an instrument which is very

common especially now when the extended unit does not
have to be connected by wire to the main telephone but can
be moved from place to place within a radius of a kilometer or
more. A person should safely presume that the party he is
calling at the other end of the line probably has an extension
telephone and he runs the risk of a third party listening as in
the case of a party line or a telephone unit which shares its
line with another.
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MERE ACT OF LISTENING TO A

TELEPHONE CONVERSATION IN AN
EXTENSION LINE IS NOT PUNISHED BY
ANTI-WIRE TAPPING LAW

It can be readily seen that our lawmakers intended to

discourage through punishment, persons such as government
authorities or representatives of organized groups from
installing devices in order to gather evidence for use in court
or to intimidate, blackmail or gain some unwarranted
advantage over the telephone users. Consequently, the mere
act of listening, in order to be punishable must strictly be with
the use of the enumerated devices in RA 4200 or others of
similar nature. We are of the view that an extension
telephone is not among such devices or arrangements.
REPUBLIC ACT 7832. AN ACT PENALIZING THE PILFERAGE
OF ELECTRICITY AND THEFT OF POWER TRANSMISSION
LINES/MATERIALS, RATIONALIZING SYSTEMS LOSSES BY
PHASING OUT PILFERAGE LOSSES AS A COMPONENT
THEREOF, AND FOR OTHER PURPOSES.

Purpose:
Its purpose is to prevent losses by penalizing the
pilferage of electricity and theft of power transmission
lines/materials. In order for the electric industry to remain
viable and sustainable, electricity theft must be stopped and
discouraged starting from its origins, the consumers.
Spouses Antonio and Lorna Quisimbing vs. MANILA ELECTTRIC
COMPANY RTJ-99-1443. G.R. No. 142943, April 3, 2002]

The law says that before immediate disconnection may

be allowed, the discovery of the illegal use of electricity must
have been personally witnesses and attested to b an officer of
the law or by authorized ERB representative. In this case, the
disconnection was effected immediately after the discovery of
the alleged meter tampering, which was witnesses only be
Meralcos employees.
That the ERB representative was
allegedly present when the meter was examined in the
Meralco laboratory will not cure the defect.

101

THEFT OF ELECTRICITY AND VIOLATION OF P.D. 401

DISTINGUISHED

It must be stressed that theft of electricity is a felony

defined and penalized under the Revised Penal Code, while
Violation of P.D. 401, as amended by B.P. Blg. 876, is an
offense punished by a special law. What generally makes the
former a felony is criminal intent (dolo) or negligence (culpa);
what makes the latter a crime is the special law enacting it.
In addition, the elements of the two (2) offenses are different
from one another. In theft, the elements are :(1) intent to
gain; (2) unlawful taking; (3) personal property belonging to
another; (4) and absence of violence or intimidation against
persons or force upon things. On the other hand, the crime of
Violation of P.D. 401, as amended by B.P. Blg. 876, is mala
prohibita. The criminal act is not inherently immoral but
becomes punishable only because the law says it is forbidden.
With these crimes, the sole issue is whether the law has been
violated. Criminal intent is not necessary.
(Diaz vs. Davao Light and Power Co., Inc. et. Al., G.R.
160959, April 4, 2007)
SEXUAL HARASSMENT LAW
(RA 7877)
WORK, EDUCATION OR TRAINING-RELATED
SEXUAL HARASSMENT DEFINED.

Work, education or training-related sexual harassment is

committed by an employer, employee, manager, supervisor,
agent of the employer, teacher, instructor, professor, coach,
trainor, or any other person who, having authority, influence
or moral ascendancy over another in a work or training or
education environment, demands, requests or otherwise
requires any sexual favor from the other, regardless of
whether the demand, request or requirement for submission
is accepted by the object of said Act.
WHEN SEXUAL HARASSMENT IS COMMITTED:

Work, Education
Defined

or Training-related

102

Sexual

Harassment

Work, education or training-related sexual harassment

is committed by an employer, employee, manager, supervisor,
agent of the employer, teacher, instructor, professor, coach,
trainor, or any other person who, having authority, influence
or moral ascendancy over another in a work or training or
education environment, demands, requests or otherwise
requires any sexual favor from the other, regardless of
whether the demand, request or requirement for submission
is accepted by the object of said Act.
In work-related or employment environment:
(1)

(2)
(3)

The sexual favor is made as a condition in the

hiring or in the employment, re-employment
or continued employment of said individual, or
in
granting
said
individual
favorable
compensation, terms, conditions, promotions,
or privileges; or the refusal to grant the sexual
favor results in limiting, segregating or
classifying the employee which in any way
would discriminate, deprive or diminish
employment
opportunities
or
otherwise
adversely affect said employee;
The above acts would impair the employee's
rights or privileges under existing labor laws;
or
The above acts would result in an intimidating,
hostile, or offensive environment for the
employee.

In an education or training environment:

(1)

Against one who is under the care, custody or

supervision of the offender;

(2)

Against one whose education, training,

apprenticeship or tutorship is entrusted to the
offender;
When the sexual favor is made a condition to
the giving of a passing grade, or the granting
of honors and scholarships or the payment of
a stipend, allowance or other benefits,
privileges, or considerations; or

(3)

103

(4)

When the sexual advances result in an

intimidating, hostile or offensive environment
for the student, trainee or apprentice.

Any person who directs or induces another

to commit any act of sexual harassment as herein
defined, or who cooperates in the commission
thereof by another without which it would not
have been committed, shall also be held liable
under this Act.
JURISPRUDENCE:

Floralde vs. Court off Appeals, (G.R. No. 123048,

August 8, 2000)
Sexual harassment in the workplace is not about a
man taking advantage of a woman by reason of sexual
desire; it is about power being exercised by as superior officer
over his women subordinates. The power emanates from the
fact that the superior can remove the subordinate from his
workplace if the latter would refuse his amorous advances.
Domingo v. Rayala, G.R. No. 155831, Feb. 8, 2000
Sexual harassment is an imposition of misplaced
superiority which is enough to dampen an employees spirit
and her capacity for advancement. It effects her sense of
judgment.
In Domingo v. Rayala, it was held. It is true that this
provision calls for a demand, request or requirement of a
sexual favor be articulated in a categorical oral or written
statement. It may be discerned, with equal certitude, from
the acts of the offender.
Bacsin vs. Wahiman, (G.R. No. 146053, April 30, 2008)
In this case, it was held that: In grave misconduct,
the elements of corruption, clear intent to violate the law, or
flagrant disregard of established rule must be manifest. The
act of petitioner of fondling one of his students is against law,
RA 7877, and is doubtless inexcusable. The particular act of
petitioner cannot in any way be construed as a case of simple
misconduct. Sexually molesting a child is, by any norm, a

104

revolting act that it cannot be categorized as a grave offense.

Parents entrust the care and molding of their children to
teachers, and expect them to be their guardians while in
school. Petitioner has violated that trust. The charge of
grave misconduct proven against petitioner demonstrates his
unfitness to remain as a teacher and continue to discharge
the functions of his office.
Esteban vs. Sandiganbayan (G.R. Nos. 146646-49), March
11, 2005
In this case, the Supreme Court held that: While it is
true, as petitioner argues, that public office is not an element
of the crime of acts of lasciviousness, defined and penalized
under Article 336 of the Revised Penal Code, nonetheless, he
could not have committed the crimes charged were it not for
the fact that the Presiding Judge of the MTCC, Branch 1,
Cabanatuan City, he has the authority to recommend the
appointment of Ana May as bookbinder. In other words, the
crimes allegedly committed are intimately connected with his
office.

CHILD AND YOUTH WELFARE CODE

( PD 603 with Amendments)
RELIGIOUS INSTRUCTION

The religious education of children in all public and private

schools is a legitimate concern of the Church to which the
students belong. All churches may offer religious instruction
in public and private elementary and secondary schools,
subject to the requirements of the Constitution and existing
laws.

TERMINATION OF RIGHTS OF PARENTS

When a child shall have been committed to the Department of

Social Welfare or any duly licensed child placement agency or
individual pursuant to an order of the court, his parents or
guardian shall thereafter exercise no authority over him
except upon such conditions as the court may impose.

105

VIOLATION OF PD 603 BY A CHILD

Prohibited Acts:

It shall be unlawful for any child to leave the person or

institution to which he has been judicially or voluntarily
committed or the person under whose custody he has been
placed in accordance with the next preceding article, or for
any person to induce him to leave such person or institution,
except in case of grave physical or moral danger, actual or
imminent, to the child.
Any violation of this article shall be punishable by an
imprisonment of not more than one year or by a fine of not
more than two thousand pesos, or both such fine and
imprisonment at the discretion of the court: Provided, That if
the violation is committed by a foreigner, he shall also be
subject to deportation.
CARE OF YOUTHFUL OFFENDER
HELD FOR EXAMINATION OR TRIAL

A youthful offender held for physical and mental examination

or trial or pending appeal, if unable to furnish bail, shall from
the time of his arrest be committed to the care of the
Department of Social Welfare or the local rehabilitation center
or a detention home in the province or city which shall be
responsible for his appearance in court whenever required:
Provided, That in the absence of any such center or agency
within a reasonable distance from the venue of the trial, the
provincial, city and municipal jail shall provide quarters for
youthful offenders separate from other detainees. The court
may, in its discretion, upon recommendation of the
Department of Social Welfare or other agency or agencies
authorized by the Court, release a youthful offender on
recognizance, to the custody of his parents or other suitable
person who shall be responsible for his appearance whenever
required.
SUSPENSION OF SENTENCE AND COMMITMENT
OF YOUTHFUL OFFENDER

If after hearing the evidence in the proper proceedings, the

court should find that the youthful offender has committed
the acts charged against him the court shall determine the
106

imposable penalty, including any civil liability chargeable

against him. However, instead of pronouncing judgment of
conviction, the court shall suspend all further proceedings and
shall commit such minor to the custody or care of the
Department of Social Welfare, or to any training institution
operated by the government, or duly licensed agencies or any
other responsible person, until he shall have reached twentyone years of age or, for a shorter period as the court may
deem
proper,
after
considering
the
reports
and
recommendations of the Department of Social Welfare or the
agency or responsible individual under whose care he has
been committed.
The youthful offender shall be subject to visitation and
supervision by a representative of the Department of Social
Welfare or any duly licensed agency or such other officer as
the Court may designate subject to such conditions as it may
prescribe.
PD 1210
ARTICLE 191 OF PD 603 IS HEREBY
AMENDED TO READ AS FOLLOWS

"Article 101.
Care of Youthful Offender Held for
Examination or Trial. - A youthful offender held for physical
and mental examination or trial or pending appeal, if unable
to furnish bail, shall from the time of his arrest be committed
to the care of the Dept. of Social Services and Development
or the local rehabilitation center or a detention home in the
province or city which shall be responsible for his appearance
in court whenever required: Provided, that in the absence of
any such center or agency within a reasonable distance from
the venue of the trial, the provincial, city and municipal jail
shall provide quarters for youthful offenders separate from
other detainees. The court may, in its discretion upon
recommendation of the Department of Social Services &
Development or other agency or agencies authorized by the
Court, release a youthful offender on recognizance, to the
custody of his parents or other suitable person who shall be
responsible for his appearance whenever required. However,
in the case of those whose cases fall under the exclusive
jurisdiction of the Military Tribunals, they may be committed
at any military detention or rehabilitation center.

107

PD 1210
ARTICLE 192 OF PD 603 AS AMENDED IS FURTHER
AMENDED TO READ AS FOLLOWS:

"Art. 192. Suspension of sentence and Commitment of

Youthful Offender. - If after hearing the evidence in the proper
proceedings, the court should find that the youthful offender
has committed the acts charged against him, the court, shall
determine the imposable penalty, including any civil liability
chargeable against him. However, instead of pronouncing
judgment of conviction, the court upon application of the
youthful offender and if it finds that the best interest of the
public as well as that of the offender will be served thereby,
may suspend all further proceedings and commit such minor
to the custody or care of the Department of Social Services
and Development or to any training institution operated by
the government or any other responsible person until he shall
have reached twenty one years of age, or for a shorter period
as the court may deem proper, after considering the reports
and recommendations of the Department of Social Services
and Development or the government training institution or
responsible person under whose care he has been committed.
Upon receipt of the application of the youthful offender
for suspension of his sentence, the court may require the
Department of Social Services and Development to prepare
and submit to the court a social case study report over the
offender and his family.
The Youthful offender shall be subject to visitation and
supervision by a representative of the Department of Social
Services & Development or government training institution as
the court may designate subject to such conditions as it may
prescribe.
The benefits of this article shall not apply to a youthful
offender who has once enjoyed suspension of sentence under
its provisions or to one who is convicted of an offense
punishable by death or life imprisonment or to one who is
convicted for an offense by the Military Tribunals.
PD 1179
APPEAL

108

The order of the court denying an application for suspension

of sentence under the provisions of Article 192 above shall
not be appealable."
RETURN OF THE YOUTHFUL
OFFENDER TO THE COURT

Whenever the youthful offender has been found

incorrigible or has wilfully failed to comply with the conditions
of his rehabilitation programs, or should his continued stay in
the training institution be inadvisable, he shall be returned to
the committing court for the pronouncement of judgment.
When the youthful offender has reached the age of
twenty-one while in commitment, the court shall determine
whether to dismiss the case in accordance with the extent
preceding article or to pronounce the judgment conviction. In
the latter case, the convicted offender may apply for
probation under the provisions of Presidential Decree
Numbered Nine Hundred and Sixty-Eight.
In any case covered by this article, the youthful
offender shall be credited in the service of his sentence with
the full time spent in actual commitment and detention
effected under the provisions of this Chapter."
RA 7610
CHILD ABUSE LAW
CHILD PROSTITUTION AND
OTHER SEXUAL ABUSE

Children, whether male or female, who for money, profit,

any other consideration or due to the coercion or influence
any adult, syndicate or group, indulge in sexual intercourse
lascivious conduct, are deemed to be children exploited
prostitution and other sexual abuse.

or
of
or
in

The penalty of reclusion temporal in its medium period to

reclusion perpetua shall be imposed upon the following:

109

(a) Those who engage in or promote, facilitate or induce

child prostitution which include, but are not limited to, the
following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child
prostitute by means of written or oral
advertisements or other similar means;
(3) Taking advantage of influence or relationship
to procure a child as prostitute;
(4) Threatening or using violence towards a
child to engage him as a prostitute; or
(5) Giving monetary consideration goods or
other pecuniary benefit to a child with intent to
engage such child in prostitution.
(b) Those who commit the act of sexual intercourse of
lascivious conduct with a child exploited in prostitution or
subject to other sexual abuse; Provided, That when the
victims is under twelve (12) years of age, the perpetrators
shall be prosecuted under Article 335, paragraph 3, for rape
and Article 336 of Act No. 3815, as amended, the Revised
Penal Code, for rape or lascivious conduct, as the case may
be: Provided, That the penalty for lascivious conduct when
the victim is under twelve (12) years of age shall reclusion
temporal in its medium period; and
(c)
Those who derive profit or advantage therefrom,
whether as manager or owner of the establishment where the
prostitution takes place, or of the sauna, disco, bar, resort,
place of entertainment or establishment serving as a cover or
which engages in prostitution in addition to the activity for
which the license has been issued to said establishment.
ATTEMPT TO COMMIT
CHILD PROSTITUTION

There is an attempt to commit child prostitution under

Section 5, paragraph (a) hereof when any person who, not
being a relative of a child, is found alone with the said child
inside the room or cubicle of a house, an inn, hotel, motel,
pension house, apartelle or other similar establishments,
vessel, vehicle or any other hidden or secluded area under
circumstances which would lead a reasonable person to

110

believe that the child is about to be exploited in prostitution

and other sexual abuse.
There is also an attempt to commit child prostitution,
under paragraph (b) of Section 5 hereof when any person is
receiving services from a child in a sauna parlor or bath,
massage clinic, health club and other similar establishments.
A penalty lower by two (2) degrees than that prescribed for
the consummated felony under Section 5 hereof shall be
imposed upon the principals of the attempt to commit the
crime of child prostitution under this Act, or, in the proper
case, under the Revised Penal Code.
CHILD TRAFFICKING

Any person who shall engage in trading and dealing

with children including, but not limited to, the act of buying
and selling of a child for money, or for any other
consideration, or barter, shall suffer the penalty of reclusion
temporal to reclusion perpetua. The penalty shall be imposed
in its maximum period when the victim under twelve (12)
years of age.
ATTEMPT TO COMMIT
CHILD TRAFFICKING

There is an attempt to commit child trafficking under

Section 7 of this Act:
(a) When a child travels alone to a foreign
country without valid reason therefor and without
clearance issued by the Department of Social
Welfare and Development or written permit or
justification from the child's parents or legal
guardian;
(b) When a person, agency, establishment or
child-caring institution recruits women or couples
to bear a children for the purpose of child
trafficking; or
(c)
When doctor, hospital or clinic official or
employee, nurse, midwife, local civil registrar or
any other person simulates birth for the purpose
of child trafficking;

111

(d) When a person engages in the act of finding

children among low-income families, hospitals,
clinics, nurseries, day-care centers, or other childduring institutions who can be offered for the
purpose of child trafficking.
A penalty lower two (2) degrees than that prescribed
for the consummated felony under Section 7 hereof shall be
imposed upon the principals of the attempt to commit child
trafficking under this Act.
OBSCENE PUBLICATIONS
AND INDECENT SHOWS

Any person who shall hire, employ, use, persuade,

induce or coerce a child to perform in obscene exhibitions and
indecent shows, whether live or in video, or model in obscene
publications or pornographic materials or to sell or distribute
the said materials shall suffer the penalty of prision mayor in
its medium period.
If the child used as a performer, subject or
seller/distributor is below twelve (12) years of age, the
penalty shall be imposed in its maximum period.
Any ascendant, guardian, or person entrusted in any
capacity with the care of a child who shall cause and/or allow
such child to be employed or to participate in an obscene
play, scene, act, movie or show or in any other acts covered
by this section shall suffer the penalty of prision mayor in its
medium period.
OTHER ACTS OF NEGLECT, ABUSE,
CRUELTY OR EXPLOITATION AND
OTHER CONDITIONS PREJUDICIAL
TO THE CHILDS DEVELOPMENT

(a) Any person who shall commit any other acts of

child abuse, cruelty or exploitation or to be responsible for
other conditions prejudicial to the child's development
including those covered by Article 59 of Presidential Decree
No. 603, as amended, but not covered by the Revised Penal

112

Code, as amended, shall suffer the penalty of prision mayor

in its minimum period.
(b) Any person who shall keep or have in his
company a minor, twelve (12) years or under or who in ten
(10) years or more his junior in any public or private place,
hotel, motel, beer joint, discotheque, cabaret, pension house,
sauna or massage parlor, beach and/or other tourist resort or
similar places shall suffer the penalty of prision mayor in its
maximum period and a fine of not less than Fifty thousand
pesos (P50,000): Provided, That this provision shall not apply
to any person who is related within the fourth degree of
consanguinity or affinity or any bond recognized by law, local
custom and tradition or acts in the performance of a social,
moral or legal duty.
(c)
Any person who shall induce, deliver or offer a
minor to any one prohibited by this Act to keep or have in his
company a minor as provided in the preceding paragraph
shall suffer the penalty of prision mayor in its medium period
and a fine of not less than Forty thousand pesos (P40,000);
Provided, however, That should the perpetrator be an
ascendant, stepparent or guardian of the minor, the penalty
to be imposed shall be prision mayor in its maximum period,
a fine of not less than Fifty thousand pesos (P50,000), and
the loss of parental authority over the minor.
(d) Any person, owner, manager or one entrusted
with the operation of may public or private place of
accommodation, whether for occupancy, food, drink or
otherwise, including residential places, who allows any person
to take along with him to such place or places any minor
herein described shall be imposed a penalty of prision mayor
in its medium period and a fine of not less than Fifty thousand
pesos (P50,000), and the loss of the license to operate such a
place or establishment.
(e) Any person who shall use, coerce, force or
intimidate a street child or any other child to:
(1)
(2)

Beg or use begging as a means of living;

Act as conduit or middlemen in drug
trafficking or pushing; or

113

(3)

Conduct any illegal activities, shall suffer

the penalty of prision correccional in its
medium period to reclusion perpetua.

For purposes of this Act, the penalty for the commission

of acts punishable under Articles 248, 249, 262, paragraph 2,
and 263, paragraph 1 of Act No. 3815, as amended, the
Revised Penal Code, for the crimes of murder, homicide, other
intentional mutilation, and serious physical injuries,
respectively, shall be reclusion perpetua when the victim is
under twelve (12) years of age. The penalty for the
commission of acts punishable under Article 337, 339, 340
and 341 of Act No. 3815, as amended, the Revised Penal
Code, for the crimes of qualified seduction, acts of
lasciviousness with the consent of the offended party,
corruption of minors, and white slave trade, respectively, shall
be one (1) degree higher than that imposed by law when the
victim is under twelve (12) years age.
The victim of the acts committed under this section
shall be entrusted to the care of the department of Social
Welfare and Development.
CHILDREN AS ZONES OF PEACE

Children are hereby declared as Zones of Peace. It shall

be the responsibility of the State and all other sectors
concerned to resolve armed conflicts in order to promote the
goal of children as zones of peace. To attain this objective,
the following policies shall be observed.
(a) Children shall not be the object of attack and shall
be entitled to special respect. They shall be protected from
any form of threat, assault, torture or other cruel, inhumane
or degrading treatment;
(b) Children shall not be recruited to become
members of the Armed Forces of the Philippines of its civilian
units or other armed groups, nor be allowed to take part in
the fighting, or used as guides, couriers, or spies;
(c)
Delivery of basic social services such as
education, primary health and emergency relief services shall
be kept unhampered;

114

(d) The safety and protection of those who provide

services including those involved in fact-finding missions from
both government and non-government institutions shall be
ensured. They shall not be subjected to undue harassment in
the performance of their work;
(e) Public infrastructure such as schools, hospitals
and rural health units shall not be utilized for military
purposes such as command posts, barracks, detachments,
and supply depots; and
(f)
All appropriate steps shall be taken to facilitate
the reunion of families temporarily separated due to armed
conflict.
RIGHTS OF CHILDREN ARRESTED
FOR REASONS RELATED TO
ARMED CONFLICT

Any child who has been arrested for reasons related to

armed conflict, either as combatant, courier, guide or spy is
entitled to the following units;
(a) Separate detention from adults except
where families are accommodated as family units;
(b) Immediate free legal assistance;
(c)
Immediate notice of such arrest to the
parents or guardians of the child; and
(d) Release of the child on recognizance within
twenty-four (24) hours to the custody of the
Department of Social Welfare and Development or
any responsible member of the community as
determined by the court.
If after hearing the evidence in the proper proceedings
the court should find that the aforesaid child committed the
acts charged against him, the court shall determine the
imposable penalty, including any civil liability chargeable
against him. However, instead of pronouncing judgment of
conviction, the court shall suspend all further proceedings and
shall commit such child to the custody or care of the
Department of Social Welfare and Development or to any
training institution operated by the Government, or dulylicensed agencies or any other responsible person, until he

115

has had reached eighteen (18) years of age or, for a shorter
period as the court may deem proper, after considering the
reports and recommendations of the Department of Social
Welfare and Development or the agency or responsible
individual under whose care he has been committed.
The aforesaid child shall subject to visitation and
supervision Development or any duly-licensed agency such
other officer as the court may designate subject to such
conditions as it may prescribe.
The aforesaid child whose sentence is suspended can appeal
from the order of the court in the same manner as appeals in
criminal cases.
CONFIDENTIALITY

At the instance of the offended party, his name may be

withheld from the public until the court acquires jurisdiction
over the case.
It shall be unlawful for any editor, publisher, and
reporter or columnist in case of printed materials, announcer
or producer in case of television and radio broadcasting,
producer and director of the film in case of the movie
industry, to cause undue and sensationalized publicity of any
case of violation of this Act which results in the moral
degradation and suffering of the offended party.
PEDOPHILIA IS NOT INSANITY

When accused-appellant was committed to the National

Center for Mental Health, he was not diagnosed as insane but
was suffering from pedophilia. Thus, there is no doubt in our
mind that he was sane during his two-year confinement in the
center, pedophilia being dissimilar to insanity.

RA 7658
EMPLOYMENT OF CHILDREN

116

Children below fifteen (15) years of age shall not be employed

except:
1)
When a child works directly under the sole
responsibility of his parents or legal guardian and where only
members of the employer's family are employed: Provided,
however, That his employment neither endangers his life,
safety, health and morals, nor impairs his normal
development; Provided, further, That the parent or legal
guardian shall provide the said minor child with the prescribed
primary and/or secondary education; or
2)
Where a child's employment or participation in
public entertainment or information through cinema, theater,
radio or television is essential: Provided, The employment
contract is concluded by the child's parents or legal guardian,
with the express agreement of the child concerned, if
possible, and the approval of the Department of Labor and
Employment: and Provided, That the following requirements
in all instances are strictly complied with:
(a) The employer shall ensure the protection,
health, safety, morals and normal development of
the child;
(b) The employer shall institute measures to
prevent the child's exploitation or discrimination
taking into account the system and level of
remuneration, and the duration and arrangement
of working time; and
(c)
The
employer
shall
formulate
and
implement,
subject to the approval and
supervision of competent authorities, a continuing
program for training and skills acquisition of the
requirements.
In the above exceptional cases where any such child
may be employed, the employer shall first secure, before
engaging such child, a work permit from the Department of
Labor and Employment which shall ensure observance of the
child.

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The Department of Labor and Employment shall

promulgate rules and regulations necessary for the effective
implementation of this Section."
IF MINOR DO NOT APPLY FOR
SUSPENSION OF SENTENCE IT IS
DEEMED WAIVED. THE COURT CANNOT
MOTU PROPIO GIVE HIM THE BENEFITS
OF ART. 192

The record, unfortunately for accused-appellant Buena,

does not show that he filed with the trial court an application
for suspension of sentence so as to put into operation the
benevolent provisions of Presidential Decree No. 603. The
Court, therefore, has no other choice but to deny him this
privilege.
DISCHARGE; REPORT AND ECOMMENDATION
OF THE DEPARTMENT OF SOCIAL WELFARE,
SUBJECT TO JUDICIAL REVIEW

It is not the responsibility of this Court to order the

release of accused Ricky Galit without the benefit of a review
of the recommendation of the Department of Social Welfare
by the trial court. Art 196 of PD 603 provides: "Art. 196.
Dismissal of the case. If it is shown to the satisfaction of
the court that the youthful offender whose sentence has been
suspended, has behaved properly and has shown his
capability to be a useful member of the community, even
before reaching the age of majority, upon recommendation of
the Department of Social Welfare, it shall dismiss the case
and order his final discharge." It is therefore clear that in
cases where the DSWD recommends the discharge of a
youthful offender, it is the trial court before whom the report
and recommendation is subject to judicial review.
Recommendation alone is not sufficient to warrant the release
of a youthful offender. In reviewing the DSWD's
recommendation, the trial judge must not base his judgment
on mere conclusions but should seek out concrete, material
and relevant facts to confirm that the youthful offender has
indeed been reformed and is ready to re-enter society as a
productive and law-abiding citizen. Caution, however, is given
to the trial court. To begin with, the youthful offender is not to
be tried anew for the same act for which he was charged. The
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inquiry is not a criminal prosecution but is rather limited to

the determination of the offender's proper education and
rehabilitation during his commitment in the Training Center
and his moral and social fitness to re-join the community.
(Pp. V. Galit; GR 97432, 3/1/94)
SUSPENSION OF SENTENCE NOT APPLICABLE
IF PENALTY IS RECLUSION PERPETUA,
LIFE IMPRISONMENT OR DEATH

As aforesaid, however, accused Ricky Galit and Raquel

Tagalog did not appeal from the judgment of the trial court.
Neither did the People question the suspension of their
sentence. The benefits of suspension of sentence are not
available where the youthful offender has been convicted of
an offense punishable by life imprisonment or death. The last
paragraph of section 2 of Presidential Decree No. 1210, which
amended certain provisions of P.D. 603, provides:
"The benefits of this article shall not apply
to a youthful offender who has once enjoyed
suspension of sentence under its provisions or to
one who is convicted of an offense punishable by
death or life imprisonment or to one who is
convicted for an offense by the Military Tribunals."
(Par. 4, Sec. 2, P.D. No. 1179, as amended by P.D.
No. 1210; emphasis supplied)
(Pp. v. Galit, supra.)

EVERY ACCUSED IS PRESUMED TO BE SANE AT THE TIME OF

COMMISSION OF THE CRIME

The law presumes all acts to be voluntary, and that it is

improper to presume that acts were done unconsciously. The
quantum of evidence required to overthrow the presumption
of sanity is proof beyond reasonable doubt. Since insanity is
in the nature of a confession and avoidance, it must be
proven beyond reasonable doubt. Moreover, an accused is
presumed to have been sane at the time of the commission of
the crime in the absence of positive evidence to show that he
had lost his reason or was demented prior to or during the
perpetration of the crime. (Pp. v. Cordova, supra.)

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FAILURE OF DEFENSE TO ASK FOR

SUSPENSION OF ARRAIGNMENT
NEGATES INSANITY

Appellant Eduardo Cordova did not even ask for the

suspension of his arraignment on the ground that he was
suffering from insanity. Paragraph (a), Section 12, Rule 116 of
the Revised Rules of Court provides that the arraignment of
an accused who appears to be suffering from an unsound
mental condition which effectively renders him unable to fully
understand the charge against him and to plead intelligently
thereto, shall be suspended. In the case at bar, Eduardo
Cordova even took the witness stand to testify. (Pp.
V.
Cordova, supra.)
CHILD & YOUTH WELFARE CODE,
NOT APPLICABLE TO DEATH OR
RECLUSION PERPETUA SENTENCE

The Child and Youth Welfare Code does not apply to

those convicted of offenses punishable by death, or reclusion
perpetua (Presidential Decree No. 603, as amended by
Presidential Decree N. 603, as amended by Presidential
Decree Nos. 1179 and 1210). The fact is Bolioc is now
twenty-three years old. He is not entitled to a suspended
sentence. He is entitled to a two-degree reduction of the
penalty (Art. 68, RPC).
(Pp. V. Mendez;
GR L-48131;
5/30/83)
SUSPENSION OF SENTENCE; CANNOT
BE AVAILED OF WHERE OFFENDER IS ALREADY OVER 21
YEARS OLD AT THE
TIME OF PROMULGATION OF HIS SENTENCE

It is true that Venancio Villanueva was a youthful

offender as defined by Art. 189 because he was under 21
years of age when he committed the offense on February 22,
1974. However, when he was sentenced on July 30, 1975, he
was over 21 years old and under the terms of Art. 192 (as
well as Art. 197) he was no longer entitled to suspension of
sentence. (Villanueva v. CFI; GR L-45798, 12/15/82)
WHEN PRESIDENTIAL DECREE NO. 603
MAY BE GIVEN RETROACTIVE EFFECT

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Where P.D. 603 is more favorable to the accused in that

the sentence against them may he suspended, said Decree
may be given retroactive effect, not only with the end in view
of giving force and effect to the laudable policies for which the
P.D. otherwise known as the Child and Youth Welfare Code
was promulgated, hut also in the light of the provisions of
Article 22 of the Revised Penal Code. (People v. Garcia; GR
L-45280-81, 6/11/81)
PRESIDENTIAL DECREE NO. 603;
ALTERNATIVE COURSES OF ACTION
OF THE COURT WHEN YOUTHFUL
OFFENDER IS RETURNED AFTER
REACHING THE AGE OF MAJORITY

The trial court has two alternative courses of action with

respect to a youthful offender whose sentence it had
suspended and who is returned to the court upon his reaching
the age of majority. These are: (1) to dismiss the case and
order the final discharge of said offender; or (2) to pronounce
the judgment of conviction. In plain and simple language, it is
either dismissal or sentence. (Pp. V. Garcia; supra.)
CIVIL LIABILITY OF YOUTHFUL
OFFENDER, DEFINED

The civil liability for damages referred to is apparently

that obligation created by or arising from the crime, otherwise
known as ex delicto the imposition of which is mandated by
Articles 100, 104(3), 107 and 345(1) of the Revised Penal
Code, (People vs. Pea, L-36434, December 20, 1977, 80
SCRA 589, 599) and is based upon a finding of the guilt of the
accused. (Pp. V. Garcia, supra.)
JURISPRUDENCE:
PEOPLE VS. ABELLO, G.R. NO. 151952, MARCH 25, 2009

More importantly, AAA cannot be considered a child

under Section 3(a) of R.A. No. 7610 which reads:
(a) Children refers to person below eighteen (18)
years of age or those over but are unable to fully
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take care of themselves or protect themselves from

abuse,
neglect,
cruelty,
exploitation
or
discrimination because of a physical or mental
disability or condition; [Emphasis supplied]
The implementing rules elaborated on this definition
when it defined a child as one who is below 18 years of age
or over said age who, upon evaluation of a qualified
physician, psychologist or psychiatrist, is found to be
incapable of taking care of herself fully because of a
physical or mental disability or condition or of
protecting herself from abuse.
PEOPLE VS. ADELADO RAGADAO ANGUAC, G.R. NO. 176744,
June 5, 2009

Sec. 5(a) of RA 7610 refers to engaging in or

promoting, facilitating, or inducing child prostitution. Sec.
5(b), on the other hand, relates to offenders who commit the
act of sexual intercourse or lascivious conduct with a child
exploited in prostitution or subject to other sexual abuse.
The informations charged accused-appellant with having
sexual congress with AAA through force, threats, and
intimidation. These allegations more properly fall under a
charge under Sec. 5(b).
PEOPLE OF THE PHILIPPINES VS. ABAY, G.R. NO. 177752,
FEBRUARY 24, 2009

Under Section 5(b), Article III of RA 7610 in relation to RA

8353, if the victim of sexual abuse is below 12 years of age,
the offender should not be prosecuted for sexual abuse but
for statutory rape under Article 266-A(1)(d) of the Revised
Penal Code and penalized with reclusion perpetua. On the
other hand, if the victim is 12 years or older, the offender
should be charged with either sexual abuse under Section
5(b) of RA 7610 or rape under Article 266-A (except
paragraph 1[d]) of the Revised Penal Code. However, the
offender cannot be accused of both crimes for the same act
because his right against double jeopardy will be prejudiced.
A person cannot be subjected twice to criminal liability for a
single criminal act. Likewise, rape cannot be complexed with a
violation of Section 5(b) of RA 7610. Under Section 48 of the
Revised Penal Code (on complex crimes), a felony under the
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Revised Penal Code (such as rape) cannot be complexed with

an offense penalized by a special law.

REPUBLIC ACT NO. 8484

(The Access Device Regulation)
An act regulating the issuance and use of access
devices, prohibiting fraudulent acts committed relative
thereto, providing penalties and for other purposes.
The recent advances in modern technology have led to
the extensive use of certain devices in commercial
transactions, prompting the State to regulate the same.
hence, on February 3, 1998, Congress enacted Republic Act
Number 8484, otherwise known as The Access Devices
Regulation Act of 1998.
Termed as "access devices" by RA No. 8484, any card,
plate, code, account number, electronic serial number,
personal identification number, or other telecommunication
service, equipment, or instrumental identifier, or other means
of account access t hat can be used to obtain money, good,
services or any other thing of value or to initiate transfer of
funds (other than transfer originated solely by paper
instrument) is now subject to regulation. The issuance and
use of access devices are ought to regulate in order to protect
the rights and define the liabilities of parties in commercial
transactions involving them.
Essentially, the law imposes duties both to the access
device issuer and holder, and penalize certain acts deemed
unlawful for being detrimental to either the issuer or holder,
or both.
The law mandates an access device issuer, or "card
issuer," to disclose either in writing or orally in any application
or solicitation to open a credit card account the following: 1)
annual percentage rate; 2) annual and other fees; 3) and
balance calculation method; 4) cash advance fee; and 5))
over the limit fee.
Moreover, the computation used in order to arrive at
such charges and fees required, to the extent practicable, to

123

be explained in detail and a clear illustration of the manner by

which it is made to apply is also necessary.
Nonetheless, there are certain exceptions for the above
requirement of disclosure not to apply. This is when
application or solicitation is made through telephone,
provided that the issuer does not impose any annual fee, and
fee in connection with telephone solicitation unless the
customer signifies acceptance by using the card, and that a
clear disclosure of the information enumerated in the
preceding paragraph is made in writing within thirty (30) after
the consumer requests for the card, but in no event later than
the date of the delivery of the card, and that the consumer is
not obligated to accept the card or account and the consumer
will not be obligated to pay any fees or charges disclosed
unless the consumer accepts the card or account by using the
card.
Failure on the part of the issuer to fulfill the above
requirements will result in the suspension or cancellation of
its authority to issue credit cards, after due notice and
hearing, by the Banko Sentral ng Pilipinas, the Securities and
Exchange Commission and such other government agencies.
In sum therefore, the above omission is made
punishable if the following elements occur. One, there is an
application or solicitation. Second, such application or
solicitation should include the information required by law.
and third, failure on the part of the issuer to disclose such
information.
In one case (Ermitano v. GR No. 127246, April 21,
1999), the Supreme Court had the occasion to rule on the
validity of contracts involving credit cards. The credit cards
holder contended that the credit card company should be
blamed for the charges the same being unwarranted by the
contract. As stipulated, once a lost card has been reported,
purchases made thereafter should not accrue on the part of
the holder.
The Court said notwithstanding the fact that the
contract of the parties is a contract of adhesion the same is
valid. However, if the same should include terms difficult to
interpret as to hide the true intent to the detriment of the
holder, holding it void requires no hesitation. Thus, contracts
124

which provide for ambiguous terms of payment, imposition of

charges and fees may be held void invoking the principle of
the contract of adhesion.
Clearly, in this case decided in 1999, the Court was
concerned about an access device issuer's vulnerability to
abuse the provisions of the contract. It is quite surprising,
however, that the Court did not make reference to RA No.
8484 to think that it was already in effect when the resolution
was promulgated.
Nonetheless, in American Express International Co.,
Inc. vs. IAC (GR NO. 70766, November 9, 1988) Supreme
Court turned down the argument of private respondent
grounded on the adhesion principle saying indeed, in a
contract of adhesion the maker of the contract has all the
advantages, however, the one to whom it is offered has the
absolute prerogative to accept or deny the same.
On the other hand, an access device holder may be
penalized when he or she fraudulently applied for such device.
An access device fraudulently applied for means any access
device that was applied for or issued on account of the use of
falsified document, false information, fictitious identities and
addresses,
or
any
form
of
false
pretense
or
misrepresentation. Thus, the use, trafficking in, possession,
and inducing, enticing or in any manner allowing one to use
access device fraudulently applied for are considered
unlawful.
The element of fraud is indispensable for this provision
of RA 8484 to apply. It is a condition sine qua non before one
may be charged with the defined offense.
Thus, the law provides for presumptions of Intent to
defraud on the basis of mere possession, control or custody
of: a) an access device without lawful authority; b) a
counterfeit access device; any device making or altering
equipment; c) an access device or medium on which an
access device is written not in the ordinary course of the
possessor's business; or d) any genuine access device, not in
the name of the possessor.
A card holder who abandons or surreptitiously leaves
the place of employment, business or residence stated in his
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application for credit card, without informing the credit card

company of the place where he could actually be found, if at
the time of such abandonment or surreptitious leaving, the
outstanding and unpaid balance is past due for at least ninety
(90) days and is more than ten thousand pesos (P10,000.00),
shall be prima facie presumed to have used his credit card
with intent to defraud.
At first glance, the above presumptions, when applied in
real cases, may suffer from constitutional infirmities. The
constitution provides that a person shall not be held to
answer to a criminal offense without due process of law. it
may be argued that such presumptions are rebuttable ones.
However, the danger lies in the shifting of the burden of proof
from the prosecution to the defense.
The law provides for sixteen (16) prohibited acts which
refer to the production, use, possession of or trafficking in
unauthorized or counterfeit access devices. It also includes
acts deemed fraudulent that increase the amount involved in
commercial transactions using access devices. Obtaining
money or anything of value through the use of an access
device with intent to defraud or gain, and fleeing thereafter.
In the final analysis, the law basically seeks to address
the issue of fraud in the issuance and use of access devices,
especially credit cards. Fraud may be committed by the issuer
by making false or vague information in the application or
solicitation to open credit card accounts. The applicant or
holder, on the other hand, fraudulently misrepresents himself
by giving wrong identity, false profession or employment, or
bloated income.
Take the case for instance of Citibank v. Gatchalian (GR
No. 111222, January 18, 1995) which shows how credit card
applicants through false representation were able to amass in
simple terms P790,000.00 from petitioner.
In this case, two employees of the Asian-Pacific
Broadcasting Co,. Inc. (ABCI) applied for nineteen (19( credit
cards with Citibank using different names other than their real
names. The Citibank approved the applications and the credit
cards were delivered to them for use. However, this case
involves an illegal dismissal case where a Citibank employee
126

was found guilty of gross negligence for effecting the delivery

of the credit cards. Her dismissal was affirmed in this case.
Insofar as access device issuers are concerned,
Eermitano v. C.A., may be a case in point. The credit card
holder lost his credit card which he immediately reported to
the card issuer. The contract stipulated that in case of lost,
the same should be reported immediately, otherwise
purchases made shall be charged to the holder. In this case,
despite the prompt reporting of the holder, the issuer still
charged the purchases against the former. The Court in this
case held the issuer in breach of the contract.
The penalties provided for by RA 8484 are
imprisonment and fine. Imprisonment is from six (6) years to
ten (10) years and fine ranges from ten thousand pesos
(10,000.00) or twice the value of the offense, whichever is
higher.
The penalties are increased in case the offender has a
similar previous conviction, meaning if he was previously
found violating RA 8484. In which case, the accused shall
suffer imprisonment of not less than twelve (12) years and
not more than twenty (20) years.
The two other stages of felony, as defined by the
Revised Penal Code is also made punishable. Thus, attempted
and frustrated are meted out with the penalties of
imprisonment and fine albeit only in fractions of the above
penalties.
R.A. 8484 may seem to favor the issuer. A credit card
company may only be meted out the penalty of cancellation
or suspension, which may be considered as mere
administrative sanctions. In fact, it is not the courts which
impose such sanctions but administrative agencies such as
the Bangko Sentral and the Securities and Exchange
Commission.
On the other hand, a holder or mere possessor of a
counterfeit fraudulently applied for access device may be
convicted and be made to suffer imprisonment and fine.
JURISPRUDENCE:

127

Citibank v Gatchalian, (G.R. No. 111222, January 18, 1995)

It shows how credit card applicants through false

representation were able to amass in simple terms
P790,000.00 from petitioner.
In this case, two employees of the Asian-Pacific
Broadcasting Co., Inc. (ABCI) applied for nineteen (19) credit
cards with Citibank using different names other than their real
names. The Citbank approved the applications and the credit
cards were delivered to them for use. However, this case
involves an illegal dismissal case where a Citibank employee
was found guilty of gross negligence for effecting the delivery
of the credit cards. Her dismissal was affirmed in this case.
Insofar as access device issuers are concerned,
Eermitano v. CA, may be a case in point. The credit card
holder lost his credit card which he immediately reported to
the card issuer. The contract stipulated that in case of lost,
the same should be reported immediately, otherwise
purchaser made shall be charged to the holder. In this case,
despite the prompt reporting of the holder, the issuer still
charged the purchases against the former. The Court in this
case held that issuer in breach of the contract.

PD 704
THE PHILIPPINE FISHERIES CODE (R.A. 8550)
Objectives:
a.
b.
c.
d.
e.

Conservation, protection and sustained management of

the countrys fishery and aquatic resources.
Poverty alleviation and the provision of supplementary
livelihood among municipal fisherfolk;
Improvement of productivity of aquaculture within
ecological limits;
Optimal utilization of offshore and deep-sea resources;
and
Upgrading of post-harvest technology.

128

In Oposa v. Factora, Jr. the Court stated that the right

to a balanced and healthful ecology need not even be written
in the Constitution for it is assumed, like other civil and
political rights guaranteed in the Bill of Rights, to exist from
the inception of mankind and it is an issue of transcendental
importance with intergeneration implications. Even assuming
the absence of a categorical legal provision specifically
prodding petitioners to clean up the bay, they and the men
and women representing them cannot escape their obligation
to future generations of Filipinos to keep the waters of the
Manila Bay clean and clear humanly as possible. Anything
less would be a betrayal of the trust reposed in them.
PEOPLE vs. PRISCILLA BALASA, (GR No. 106357, September
3, 1998)

Where the accused committed qualified violation of

PD704 (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, Article 13 and 63 of the
Revised Penal Code.
RP vs. CA (Sep. 30,1999, G.R. 122269)

The trial court has no jurisdiction to make a disposition

of inalienable public land.
PEOPLE OF THE PHILIPPINES VS. MACARAEN, G.R. No. L32166 18 October 1977

However, at present, there is no more doubt that

electro fishing is punishable under the Fisheries Law and that
it cannot be penalized merely by executive revolution because
Presidential Decree No. 704, which is revision and
consolidation of all laws and decrees affecting fishing and
fisheries and which was promulgated on May 16, 1975 (71
O.G. 4269), expressly punishes electro fishing in fresh water
and salt water areas.
That decree provides:

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SEC. 33. Illegal fishing, dealing in illegally caught fish

or fishery/aquatic products. It shall he unlawful for any
person to catch, take or gather or cause to be caught, taken
or gathered fish or fisheries/aquatic products in Philippine
waters with the use of explosives, obnoxious or poisonous
substance, or by the use of electricity as defined in
paragraphs (1), (m) and (d), respectively, of Section 3
hereof:
The decree Act. No. 4003, as amended, Republic Acts
Nos. 428, 3048, 3512 and 3586, Presidential Decrees Nos.
43, 534 and 533, and all, Acts, Executive Orders, rules and
regulations or parts thereof inconsistent with it (Sec. 49, P.D.
No. 704).
The inclusion in that decree of provisions defining and
penalizing electro fishing is a clear recognition of the
deficiency or silence on that point of the old Fisheries Law. It
is an admission that a mere executive regulation is not legally
adequate to penalize electro fishing.
Note that the definition of electro fishing, which is found
in section 1(c) of Fisheries Administrative Order No. 84 and
which is not provided for the old Fisheries Law, is now found
in section 3(d) of the decree. Note further that the decree
penalty electro fishing by imprisonment from two (2) to four
(4) years, a punishment which is more severe that the
penalty of a time of not excluding P500 or imprisonment of
not more than six months or both fixed in section 3 of
Fisheries Administrative Order No. 84.

ILLEGAL RECRUITMENT
JURISPRUDENCE:
PEOPLE OF THE PHILIPPINES
182232, OCTOBER 6, 2008

VS.

HU,

G.R.

NO.

Illegal recruitment is committed when two elements

concur, namely: (1) the offender has no valid license or
authority required by law to enable him to lawfully engage in
the recruitment and placement of workers; and (2) he
undertakes any activity within the meaning of recruitment
130

and placement defined under Article 13(b) of the Labor

Code. Recruitment and placement is any act of canvassing,
enlisting, contracting, transporting, utilizing, hiring or
procuring workers; and includes referrals, contact services,
promising or advertising for employment, locally or abroad,
whether for profit or not: Provided, that any person or entity
which, in any manner, offers or promises for a fee
employment to two or more persons shall be deemed
engaged in recruitment and placement.
The crime becomes Illegal Recruitment in Large Scale
when the foregoing two elements concur, with the addition of
a third element the recruiter committed the same against
three or more persons, individually or as group.
A conviction for large scale illegal recruitment must be
based on a finding in each case of illegal recruitment of three
or more persons whether individually or as a group. While it
is true that the law does not require that at least three
victims testify at the trial, nevertheless, it is necessary that
there is sufficient evidence proving that the offense was
committed against three or more persons.
While there were six private complainants in this case,
four of whom were presented during the trial, the
prosecution, nonetheless, failed to establish that Hu engaged
in illegal recruitment acts against at least three of these
complainants. In offenses in which the number of victims is
essential, such as in the present petition, failure of the
prosecution to prove by convincing evidence that the offense
is committed against the minimum number of persons
required by law is fatal to its cause of action. Underscoring
the significance of the number of victims was the disquisition
of Justice Florenz Regalado in People v. Ortiz-Miyake:
It is evident that in illegal recruitment cases, the
number of persons victimized is determinative. Where
illegal recruitment is committed against a lone victim,
the accused may be convicted of simple illegal
recruitment which is punishable with a lower penalty
under Article 39(c) of the Labor Code. Corollarily, where
the offense is committed against three or more persons, it is
qualified to illegal recruitment in large scale which provides a
higher penalty under Article 39(a) of the same Code.
(Emphasis supplied.)
131

PEOPLE OF THE PHILIPPINES VS. LO, G.R. NO. 175229,

JANUARY 29, 2009

In a litany of cases, we held that to constitute illegal

recruitment in large scale three (3) elements must concur:
(a) the offender has no valid license or authority required by
law to enable him to lawfully engage in recruitment and
placement of workers; (b) the offender undertakes any of the
activities within the meaning of "recruitment and placement"
under Art. 13, par. (b), of the Labor Code, or any of the
prohibited practices enumerated under Art. 34 of the same
Code (now Sec. 6, RA 8042); and, (c) the offender committed
the same against three (3) or more persons, individually or as
a group.
PEOPLE OF THE PHILIPPINES VS. NOGRA, G.R. 170834,
AUGUST 29, 2008

The defense of being a mere employee is not a shield against

his conviction for large scale illegal recruitment. In People v.
Gasacao and People v. Sagayaga, the Court reiterated the
ruling in People v. Cabais, People v. Chowdury and People v.
Corpuz that an employee of a company or corporation
engaged in illegal recruitment may be held liable as principal
by direct participation, together with its employer, if it is
shown that he actively and consciously participated in the
recruitment process.
PEOPLE OF THE PHILIPPINES VS. LARRY DOMINGO, G.R.
181475, APRIL 7, 2009

That no receipt or document in which appellant acknowledged

receipt of money for the promised jobs was adduced in
evidence does not free him of liability. For even if at the time
appellant was promising employment no cash was given to
him, he is still considered as having been engaged in
recruitment activities, since Article 13(b) of the Labor Code
states that the act of recruitment may be for profit or not. It
suffices that appellant promised or offered employment for a
fee to the complaining witnesses to warrant his conviction for
illegal recruitment.
LAPASARAN VS. PEOPLE OF THE PHILIPPINES, G.R. NO.
179907, FEBRUARY 12, 2009
132

It is well established in jurisprudence that a person may be

convicted of both illegal recruitment and estafa. The reason,
therefore, is not hard to discern: illegal recruitment is malum
prohibitum, while estafa is malum in se. In the first, the
criminal intent of the accused is not necessary for conviction.
In the second, such an intent is imperative.

RA 9165 - SALE AND DISTRIBUTION

PEOPLE OF THE PHILIPPINES VS. DUMLAO, G.R. NO. 181599,
AUGUST 20, 2008
The pertinent portion of Sec. 5, Art. II of Republic Act 9165
provides:
SEC. 5.
Sale, Trading, Administration,
Dispensation,
Delivery,
Distribution
and
Transportation
of
Dangerous
Drugs
and/or
Controlled Precursors and Essential Chemicals.
The penalty of life imprisonment to death and a
fine ranging from Five hundred thousand pesos
(P500,000.00)
to
Ten
million
pesos
(P10,000,000.00) shall be imposed upon any
person, who, unless authorized by law, shall sell,
trade, administer, dispense, deliver, give away to
another, distribute, dispatch in transit or transport
any dangerous drug, including any and all species
of opium poppy regardless of the quantity and
purity involved, or shall act as a broker in any of
such transactions.
xxxx

In the instant case, appellant is charged with selling

shabu, which is a dangerous drug. Section 3(ii), Art. I of
Republic Act 9165 defines selling as any act of giving away
any dangerous drug and/or controlled precursor and essential
chemical whether for money or any other consideration.
To sustain a conviction under this provision, the
prosecution needs to establish sufficiently the identity of the
buyer, seller, object and consideration; and, the delivery of
the thing sold and the payment thereof. What is material is

133

proof that the transaction or sale actually took place, coupled

with the presentation in court of the substance seized as
evidence. The commission of the offense of illegal sale of
dangerous drugs requires merely the consummation of the
selling transaction, which happens the moment the buyer
receives the drug from the seller. Settled is the rule that as
long as the police officer went through the operation as a
buyer and his offer was accepted by appellant and the
dangerous drugs delivered to the former, the crime is
considered consummated by the delivery of the goods.

PEOPLE VS. DARISAN, G.R. NO. 176151, JANUARY 30, 2009

The following are the elements of illegal sale and illegal

possession of dangerous drugs:
In a prosecution for illegal sale of dangerous drugs, the
following elements must first be established: (1) proof that
the transaction or sale took place and (2) the presentation in
court of the corpus delicti or the illicit drug as evidence. In a
prosecution for illegal possession of a dangerous drug, it must
be shown that (1) the accused was in possession of an item
or an object identified to be a prohibited or regulated drug,
(2) such possession is not authorized by law, and (3) the
accused was freely and consciously aware of being in
possession of the drug.
PEOPLE VS. CONCEPCION, G.R. NO. 178876, JUNE 27, 2008

Jurisprudence has firmly entrenched the following as

elements in the crime of illegal sale of prohibited drugs: (1)
the accused sold and delivered a prohibited drug to another,
and (2) he knew that what he had sold and delivered was a
dangerous drug. These two elements were clearly established
in this case. The records show that appellants sold and
delivered the shabu to the PDEA agent posing as a poseurbuyer. The plastic sachets containing white crystalline
substance, which were seized and were found positive for
methylamphetamine hydrochloride (shabu), a dangerous
drug, were identified and offered in evidence. There is also
no question that appellants knew that what they were selling
and delivering was shabu, a dangerous drug.

134

Settled is the rule that the absence of a prior

surveillance or test buy does not affect the legality of the buybust operation. There is no textbook method of conducting
buy-bust operations. The Court has left to the discretion of
police authorities the selection of effective means to
apprehend drug dealers. A prior surveillance, much less a
lengthy one, is not necessary especially where the police
operatives are accompanied by their informant during the
entrapment. Flexibility is a trait of good police work. In the
instant case, the entrapment or buy-bust operation was
conducted without the necessity of any prior surveillance
because the confidential informant, who was previously
tasked by the buy-bust team leader to order dangerous drugs
from appellant Alfredo Concepcion, accompanied the team to
the person who was peddling the dangerous drugs.
The failure of the PDEA operatives to record the boodle
money will not render the buy-bust operation illegal. The
recording of marked money used in a buy-bust operation is
not one of the elements for the prosecution of sale of illegal
drugs. The recording or non-recording thereof in an official
record will not necessarily lead to an acquittal as long as the
sale of the prohibited drug is adequately proven. In the case
at bar, PO2 Sistemio, the poseur buyer and PO2 Arojado
testified as to how the shabu subject of the case was seized
from appellants. Settled is the rule that in the prosecution for
the sale of dangerous drugs, the absence of marked money
does not create a hiatus in the evidence for the prosecution
as long as the sale of dangerous drugs is adequately proven
and the drug subject of the transaction is presented before
the court. Neither law nor jurisprudence requires the
presentation of any money used in the buy-bust operation.
What is material to a prosecution for illegal sale of dangerous
drugs is the proof that the transaction or sale actually took
place, coupled with the presentation in court of the corpus
delicti as evidence. The prosecution duly established both in
this case.

PEOPLE VS. LAGMAN, G.R. NO. 168695, DECEMBER 8, 2008

The essential elements of the crime of illegal possession

of regulated drugs are the following: 1) the actual possession
of an item or object which is identified to be a prohibited

135

drug; (2) such possession is not authorized by law; and (3)

the accused freely or consciously possessed the said drug.
[Illegal possession of regulated drugs] is mala prohibita,
and, as such, criminal intent is not an essential element.
However, the prosecution must prove that the accused had
the intent to possess (animus posidendi) the drugs.
Possession, under the law, includes not only actual
possession, but also constructive possession.
Actual
possession exists when the drug is in the immediate physical
possession or control of the accused. On the other hand,
constructive possession exists when the drug is under the
dominion and control of the accused or when he has the right
to exercise dominion and control over the place where it is
found. Exclusive possession or control is not necessary. The
accused cannot avoid conviction if his right to exercise control
and dominion over the place where the contraband is located,
is shared with another. (Emphasis and underscoring supplied)

The finding of illicit drugs and paraphernalia in a house

or building owned or occupied by a particular person raises
the presumption of knowledge and possession thereof which,
standing alone, is sufficient to convict.

PEOPLE VS. DELA CRUZ, G.R. NO. 182348, NOVEMBER 28,

2008

The elements in illegal possession of dangerous drug

are: (1) the accused is in possession of an item or object
which is identified to be a prohibited drug; (2) such
possession is not authorized by law; and (3) the accused
freely and consciously possessed the said drug. On the third
element, we have held that the possession must be with
knowledge of the accused or that animus possidendi existed
with the possession or control of said articles. Considering
that as to this knowledge, a persons mental state of
awareness of a fact is involved, we have ruled that:
Since courts cannot penetrate the mind of an accused
and thereafter state its perceptions with certainty, resort to
other evidence is necessary. Animus possidendi, as a state of
mind, may be determined on a case-to-case basis by taking
into consideration the prior or contemporaneous acts of the
accused, as well as the surrounding circumstances. Its
136

existence may and usually must be inferred from the

attendant events in each particular case.
PEOPLE VS. MARTIN SIMON,
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 he 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 he 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. Futhermore, considering the vintage
of Act. 4103 as earlier noted, this holding is but an application
and is justified under the rule of contemporanea exposition.
Republic Act No. 6425, as now amended by Republic Act No.
7569, has unqualifiedly adopted the penalties under the
Revised Penal Code in their technical signification and effects.
In fact, for purposes of determining the maximum of said
sentence, we have applied the provisions of he amended
Section 20 of said law to arrive at prision correctional and
137

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 Code.
CULTIVATION
JURISPRUDENCE:
PEOPLE OF THE PHILIPPINES VS. RICARDO ALUNDAY, G.R.
181546, September 3, 2008

A perusal of Section 9, Art. II of R.A. No. 6425 shows

that a violation exists when a person shall cultivate, plant or
culture on any medium Indian hemp, opium poppy (papaver
somniferum) or any other plant which may hereafter be
classified as dangerous drug. Indeed, ownership of the land
where the marijuana seedlings are planted, cultivated and
cultured is not a requisite of the offense.
CHAIN OF CUSTODY
PEOPLE OF THE PHILIPPINES VS. OBMIRANIS, G.R. NO.
181492, DECEMBER 16, 2008
In
criminal
prosecutions,
fundamental
is
the
requirement that the elemental acts constituting the offense
be established with moral certainty as this is the critical and
only requisite to a finding of guilt. In prosecutions involving
narcotics, the narcotic substance itself constitutes the corpus
delicti of the offense and the fact of its existence is vital to
sustain a judgment of conviction beyond reasonable doubt.
It is therefore of prime importance that in these cases, the
identity of the dangerous drug be likewise established beyond
reasonable doubt. In other words, it must be established with
unwavering exactitude that the dangerous drug presented in
court as evidence against the accused is the same as that
seized from him in the first place. The chain of custody
requirement performs this function in that it ensures that
unnecessary doubts concerning the identity of the evidence
are removed.

PEOPLE OF THE PHILIPPINES VS. ROSALES,

177220, APRIL 24, 2009

138

G.R. NO.

In a prosecution for illegal sale of dangerous drugs, the

following elements must be established: (1) proof that the
transaction or sale took place; and (2) presentation in court
of the corpus delicti or the illicit drug as evidence. The
existence of dangerous drugs is a condition sine qua non for
conviction for the illegal sale of dangerous drugs, it being the
very corpus delicti of the crime. Central to this requirement is
the question of whether the drug submitted for laboratory
examination and presented in court was actually recovered
from appellant. Hence, the Court has adopted the chain of
custody rule.
As a method of authenticating evidence, the chain of
custody rule requires that the admission of an exhibit be
preceded by evidence sufficient to support a finding that the
matter in question is what the proponent claims it to be. It
would include testimony about every link in the chain, from
the moment the item was picked up to the time it is offered
into evidence, in such a way that every person who touched
the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the
witness possession, the condition in which it was received
and the condition in which it was delivered to the next link in
the chain. These witnesses would then describe the
precautions taken to ensure that there had been no change in
the condition of the item and no opportunity for someone not
in the chain to have possession of the same. (Underscoring
supplied)
PEOPLE OF THE PHILIPPINES VS. RUIZ GARCIA, G.R. NO.
173480, FEBRUARY 25, 2009

A buy-bust operation gave rise to the present case.

While this kind of operation has been proven to be an
effective way to flush out illegal transactions that are
otherwise conducted covertly and in secrecy, a buy-bust
operation has a significant downside that has not escaped the
attention of the framers of the law. It is susceptible to police
abuse, the most notorious of which is its use as a tool for
extortion. In People v. Tan, this Court itself recognized that
by the very nature of anti-narcotics operations, the need for
entrapment procedures, the use of shady characters as
informants, the ease with which sticks of marijuana or grams
of heroin can be planted in pockets of or hands of

139

unsuspecting provincial hicks, and the secrecy that inevitably

shrouds all drug deals, the possibility of abuse is great. Thus,
courts have been exhorted to be extra vigilant in trying drug
cases lest an innocent person is made to suffer the unusually
severe penalties for drug offenses. Accordingly, specific
procedures relating to the seizure and custody of drugs have
been laid down in the law (R.A. No. 9165) for the police to
strictly follow. The prosecution must adduce evidence that
these procedures have been followed in proving the elements
of the defined offense.
The chain of custody requirement is essential to ensure
that doubts regarding the identity of the evidence are
removed through the monitoring and tracking of the
movements of the seized drugs from the accused, to the
police, to the forensic chemist, and finally to the court. It is
important enough as a concern that Section 1(b) of
Dangerous Drugs Board Regulation No. 1, Series of 2002
(which implements R.A. No. 9165) specifically defines chain of
custody.
Chain of Custody means the duly recorded
authorized movements and custody of seized drugs or
controlled chemicals or plant sources of dangerous drugs or
laboratory equipment of each stage, from the time of
seizure/confiscation to receipt
in the forensic
laboratory to safekeeping to presentation in court for
destruction. Such record of movements and custody of
seized item shall include the identity and signature of the
person who held temporary custody of the seized item, the
date and time when such transfer of custody were made in
the course of safekeeping and used in court as evidence, and
the final disposition.

PEOPLE VS. MAGAT, G.R. NO. 179939, SEPTEMBER 29, 2008

R.A. No. 9165 had placed upon the law enforcers the
duty to establish the chain of custody of the seized drugs to
ensure the integrity of the corpus delicti. Thru proper exhibit
handling, storage, labeling and recording, the identity of the

140

seized drugs is insulated from doubt from their confiscation

up to their presentation in court.

CA 142: AN ACT REGULATING THE USE OF ALIASES

PEOPLE VS. JOSEPH EJERCITO ESTRADA, ET. AL., G.R. NO.

164368-69, APRIL 2, 2009

A name or names used by a person or intended to be used

by him publicly and habitually usually in business
transactions in addition to his real name by which he is
registered at birth or baptized the first time or substitute
name authorized by a competent authority. There must be,
in the words of Ursua, a sign or indication that the user
intends to be known by this name (the alias) in addition to
his real name from that day forth [for the use of alias to]
fall within the prohibition contained in C.A. No. 142 as
amended.

PD 705:
THE FORESTRY CODE OF THE PHILIPPINES
JURISPRUDENCE:
OLYMPIO REVALDO VS. PEOPLE, G.R. NO. 170589, APRIL 16,
2009

There are two distinct and separate offenses punished

under Section 68 of the Forestry Code, to wit:
(1)

Cutting, gathering, collecting and removing timber or

other forest products from any forest land, or timber
from alienable or disposable public land, or from
private land without any authority; and

(2)

Possession of timber or other forest products without

the legal documents required under existing forest
laws and regulations.

141

As the Court held in People v. Que, in the first offense,

one can raise as a defense the legality of the acts of cutting,
gathering, collecting, or removing timber or other forest
products by presenting the authorization issued by the DENR.
In the second offense, however, it is immaterial whether the
cutting, gathering, collecting and removal of the forest
products are legal or not. Mere possession of forest products
without the proper documents consummates the crime.
Whether or not the lumber comes from a legal source is
immaterial because the Forestry Code is a special law which
considers mere possession of timber or other forest products
without the proper documentation as malum prohibitum.

REVISING PRESIDENTIAL DECREE NO. 389,

OTHERWISE KNOWN AS THE FORESTRY REFORM
CODE OF THE PHILIPPINES:
-

Cutting of timber in private land and turning to lumber in

private land is a Violation of Forestry Code.
JURISPRUDENCE:
Sesinado Merida, vs. People of the Philippines, G.R. No.
158182, June 12, 2008
The petitioner was charged with cutting trees and
converting the same to lumber on private land, as violation to
the forestry code.
A violation as made under the forestry code, if the
specie of tree is listed on the prohibited subject of the code,
then, cutting these prohibited trees from a private land then
converting it to lumber is a violation of the law. Clearly, no
construction is needed when the words of the law is
unambiguous and there is indication as regards a contrary
legislative intent.
Amado Taopa, vs. People of the Philippines, G.R. No.
184098, November 25, 2008
Section 68 of PD 705, as amended, refers to Articles
309 and 310 of the Revised Penal Code (RPC) for the
142

penalties to be imposed on violators. Violation of Section 68

of PD 705, as amended, is punished as qualified theft. The
law treats cutting, gathering collecting and possessing timber
of other forest products without license as an offense as grave
as and equivalent to the felony of qualified theft.
Galo Monge, vs. People of the Philippines, G.R. No.
170308 March 7, 2008
Section 68 of PD 705, as amended by E.O. No. 277,
criminalizes two distinct and separate offenses, namely: (a)
the cutting, gathering, collecting and removing of timber or
other forest products from any forest land, or timber from
alienable or disposable public land, or from private land
without any authority; and (b) the possession of timber or
other forest products without the legal documents required
under existing laws and regulations. DENR Administrative
Order No. 59 series of 1993 specifies the documents required
for the transport of timber and other forest products. Section
3 thereof materially requires for the transport of lumber be
accompanied by a certificate of lumber origin duly issued by
the DENR-CENRO. In the first offense, the legality of the acts
of cutting, gathering, collecting or removing timber or other
forest products may be proven by the authorization duly
issued by the DENR. In the second offense, however, it is
immaterial whether or not the cutting gathering, collecting
and removal of forest products are legal precisely because
mere possession of forest products without the requisite
documents consummates the crime.
It is thus clear that the fact of possession by petitioner
and Potencio of the subject mahogany lumber and their
subsequent failure to produce the requisite legal documents,
taken together, has already given rise to criminal liability
under Section 69 of PD No. 705, particularly second act
punished thereunder.

THE CRIME OF LAUNDERING

(REPUBLIC ACT NO. 9160)

Purpose:

143

It is hereby declared the policy of the State to protect

and preserve the integrity and confidentiality of bank
accounts and to ensure that the Philippines shall not be used
as a money laundering sit for the proceeds of any unlawful
activity. Consistent with its foreign policy, the State shall
extend cooperation in transnational investigations and
prosecutions of persons involved in money laundering
activities wherever committed.
The Anti-Money Laundering Council
A. POWERS AND DUTIES
a) To require and receive covered or suspicious transaction
reports from covered institutions;
b) To issue orders addressed to the appropriate Supervising
Authority or the covered institutions to determine the
true identity of the owner of any monetary instrument or
property subject of a covered transaction or suspicious
transaction report or request for assistance from a
foreign State, or believed by the Council, on the basis of
substantial evidence, to be, in whole or in part, wherever
located, representing, involving, or related to directly or
indirectly, in any manner or by any means, the proceeds
of an unlawful activity.
c) To institute civil forfeiture proceedings and all other
remedial proceedings through the Office of th Solicitor
General;
d) To cause the filing of complaints with the Department of
Justice or the Ombudsman for the prosecution of money
laundering offenses;
e)

To investigate suspicious transactions and covered

transactions deemed suspicious after an investigation by
AMLC, money laundering activities and other violations
of this Act;

f) To apply before the Court of Appeals, ex parte, for the

freezing of any monetary instrument or property alleged
to be the proceeds of any unlawful activity as defined in
Section 3(i) hereof;

144

g) To implement such measures as may be necessary and

justified under this Act to counteract money laundering;
h) To receive and take action in respect of, any request
from foreign states for assistance in their own antimoney laundering operations provided in this Act;
i) To develop educational programs on the pernicious
effects of money laundering, the methods and
techniques used in the money laundering, the viable
means of preventing money laundering and the effective
ways of prosecuting and punishing offenders;
j) To enlist the assistance of any branch, department,
bureau, office, agency, or instrumentality of the
government,
including
government-owned
and
-controlled corporations, in undertaking any and all antimoney laundering operations, which may include the use
of its personnel, facilities and resources for the more
resolute prevention, detection, and investigation of
money laundering offenses and prosecution of offenders;
and
k) To impose administrative sanctions for the violation of
laws, rules, regulations, and orders and resolutions
issued pursuant thereto. (Sec. 7, RA 9160, as amended
by RA 9194)
COMPOSITION OF AMLC
A. Governor of the Banko Sentral ng Pilipinas as Chairman
B. Commissioner of the Insurance Commission as Member
C. Chairman of the Securities and Exchange Commission as
Member (Sec. 7, RA 9160, as amended by RA 9194)
JURISDICTIONS OF MONEY LAUNDERING CASES.
The regional trial courts shall have jurisdiction to try all
cases on money laundering. Those committed by public
officers and private persons who are in conspiracy with such
public officers shall be under the jurisdiction of the
Sandiganbayan. (Sec. 5, RA 9160)
FREEZING OF MONETARY INSTRUMENT OR PROPERTY

145

The Court of Appeals, upon application ex parte by the

AMLC and after determination that probable cause exists that
any monetary instrument or property is in any way related to
an unlawful activity as defined in Section 3(i) hereof, may
issue a freeze order which shall be effective immediately. The
freeze order shall be for a period of twenty (20) days unless
extended by the court. (Sec. 10 of RA 9160, as amended by
RA 9194)
AUTHORITY TO INQUIRE INTO BANK DEPOSITS

Notwithstanding the provisions of Republic Act No.

1405, as amended, Republic Act No. 6426, as amended,
Republic Act No. 8791, and other laws, the AMLC may inquire
into or examine any particular deposit or investment with any
banking institution or non-bank financial institution upon
order of any competent court in cases of violation of this Act,
when it has been established that there is probable cause that
the deposits or investments are related to an unlawful
activities as defined in Section 3(I) hereof or a money
laundering offense under Section 4 hereof, except that no
court order shall be required in cases involving unlawful
activities defined in Sections 3(I)1, (2) and (12).
To ensure compliance with this Act, the Bangko Sentral
ng Pilipinas (BSP) may inquire into or examine any deposit of
investment with any banking institution or non-bank financial
institution when the examination is made in the course of a
periodic or special examination, in accordance with the rules
of examination of the BSP. (Sec. 11 of RA 9160, as amended by
RA 9194)

JURISPRUDENCE:
In the case of People vs. Estrada (G.R. No. 164368,
April 2, 2009) as regards the use of an alias, the Supreme
Court held that the repeated use of an alias within a single
day cannot be deemed habitual, as it does not amooffiunt
to a customary practice or use.
In the case of Anti-Money Laundering Council
(AMLC) vs. Hon. Eugenio, the court held that: In addition
to providing for the definition and penalties for the crime of
money laundering, the AMLA also authorizes certain

146

provisional remedies that would aid the AMLC in the

enforcement of the AMLA. These are the freeze order
authorized under Sec. 10, and the bank inquiry order
authorized under Section 11. xxx Still, even if the bank
inquiry order may be availed of without need of a pre-existing
case under the AMLA, it does not follow that such order may
be availed for ex parte. There are several reasons why the
AMLA does not generally sanction ex parte applications and
issuance of the bank inquiry order.

REPUBLIC ACT 9160

ANTI-MONEY LAUNDERING ACT, AS AMENDED BY
REPUBLIC ACT 9194
DEFINITION OF TERMS
(a) "Covered Institution" refers to:
(1) Banks, non-banks, quasi-banks, trust entities,
and all other institutions and their subsidiaries
and affiliates supervised or regulated by the
Bangko Sentral ng Pilipinas (BSP);
(2) Insurance companies and all other institutions
supervised or regulated by the Insurance
Commission; and
(3) Securities dealers, brokers, salesmen,
investment houses and other similar entities
managing securities or rendering services as
investment agent, advisor, or consultant, (ii)
mutual funds, close and investment companies,
common trust funds, pre-need companies and
other similar entities, (iii) foreign exchange
corporations,
money
changers,
money
payment, remittance, and transfer companies
and other similar entities, and (iv) other
entities administering or otherwise dealing in
currency, commodities or financial derivatives
based
thereon,
valuable
objects,
cash
substitutes and other similar monetary
instruments
or
property
supervised
or

147

regulated
by
Securities
and
Commission.(Sec. 3-a, RA 9160)

Exchange

(b) Covered Transaction is a transaction in cash or other

equivalent monetary instrument involving a total amount in
excess of Five Hundred Thousand Pesos (Php 500,000.00)
within one banking day. (Sec. 3(b) of RA 9160, as amended
by RA 9194)
(c) Suspicious Transaction are transactions with covered
institutions, regardless of the amounts involved, where any of
the following circumstances exist:
1. There is no underlying legal or trade obligation,
purpose or economic justification;
2. The client is not properly identified;
3. The amount involved is not commensurate with
the business or financial capacity of the client;
4. Taking into account all known circumstances, it
may be perceived that the clients transaction is
structured in order to avoid being the subject of
5. reporting requirements under the Act;
6. Any circumstances relating to the transaction
which is observed to deviate from the profile of
the client and/or the clients past transactions with
the covered institution;
7. The transactions is in any way related to an
unlawful activity or offense under this Act that is
about to be, is being or has been committed; or
8. Any transactions that is similar or analogous to
any of the foregoing. (Sec. b-1, RA 9160 as
amended by RA 9194)
(d) Unlawful activity - refers to any act or omission or
series or combination thereof involving or having direct
relation to following:

148

(1) Kidnapping for ransom under Article 267 of

Act No. 3815, otherwise known as the Revised
Penal Code, as amended;
(2) Sections 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, and
16 of Republic Act No. 9165, otherwise known as
the Comprehensive Dangerous Act of 2002;
(3) Section 3 paragraphs B, C, E, G, H and I of
republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act;
(4) Plunder under Republic Act No. 7080, as
amended;
(5) Robbery and extortion under Articles 294,
295, 296, 299, 300, 301 and 302 of the Revised
Penal Code, as amended;
(6) Jueteng and Masiao punished as illegal
gambling under Presidential Decree No. 1602;
(7) Piracy on the high seas under the Revised
Penal Code, as amended and Presidential under
the Revised Penal Code, as amended and
Presidential Decree No. 532;
(8) Qualified theft under Article 310 of the Revised
penal Code, as amended;
(9) Swindling under Article 315 of the Revised
Penal Code, as amended;
(10) Smuggling under Republic Act Nos. 455 and
1937;
(11) Violations under Republic Act No. 8792,
otherwise known as the Electronic Commerce Act
of 2000;
(12) Hijacking and other violations under Republic
Act No. 6235; destructive arson and murder, as
defined under the Revised Penal Code, as
amended,
including
those
perpetrated
by

149

terrorists against non-combatant persons and

similar targets;
(13) Fraudulent practices and other violations
under Republic Act No. 8799, otherwise known as
the Securities Regulation Code of 2000;
(14) Felonies or offenses of a similar nature that
are punishable under the penal laws of other
countries. (Sec. I of RA 9160, as amended by RA
9194)
(e) Money Laundering Offense. -- Money laundering is a
crime whereby the proceeds of an unlawful activity as herein
defined are transacted, theeby making them appear to have
originated from legitimate sources. It is committed by the
following:
(a) Any person knowing that any monetary
instrument or property represents, involves, or
relates to, the proceeds of any unlawful activity,
transacts or attempts to transact said monetary
instrument or property.
(b) Any person knowing that any monetary
instrument or property involves the proceeds of any
unlawful activit, performs or fails to perform any act
as a result of which he facilitates the offense of
money laundering referred to in paragraph (a)
above.
(c) Any person knowing that any monetary
instrument or property is required under this Act to
be disclosed and filed with the Anti-Money
Laundering Council (AMLC), fails to do so." (Sec. 4 of
RA 9160, as amended by RA 9194)

P.D. 533 OR ANTI-CATTLE RUSTLING LAW

Definition

150

Cattle-rustling is the taking away by any means, method or

scheme, without the consent of the owner or raiser, of any
cow, carabao, horse, mule, ass or other domesticated
member of the bovine family, whether or not for profit or
gain, or whether committed with or without violence against
or intimidation of any person or force upon things; and it
includes the killing of large cattle, or taking its meat or hide
without the consent of the owner or raiser. (Pil-Ey vs. People,
G.R. No. 154941, July 9, 2007)
Violation of Anti-Cattle Rustling Law; Elements
1. Large cattle is taken
2. It belongs to another
3. The taking is done without the consent of the owner or
raiser
4. The taking is done by any means, method or scheme
5. The taking is done with or without intent to gain
6. The taking is accomplished with or without violence or intimidation against
person or force upon things. (Pil-Ey vs. People, G.R. No. 154941, July 9, 2007)
DEEMED AS AN AMENDMENT OF THE REVISED PENAL CODE
However, as we have declared in Canta, the computation of the
penalty should be in accordance with our discussion in People v.
Macatanda (195 SCRA 604), which we quote herein for emphasis,
thus:

We do not agree with the Solicitor General that P.D. No.

533 is a special law, entirely distinct from and unrelated to
the Revised Penal Code. From the nature of the penalty
imposed which is in terms of the classification and duration of
penalties as prescribed in the Revised Penal Code, which is
not for penalties as are ordinarily imposed in special laws, the
intent seems clear that P.D. 533 shall be deemed as an
amendment of the Revised Penal Code, with respect to the
offense of theft of large cattle (Art. 310), or otherwise to be
subject to applicable provisions thereof such as Article 104 of
the Revised Penal Code on civil liability of the offender, a
provision which is not found in the decree, but which could
not have been intended to be discarded or eliminated by the
decree. Article 64 of the same Code should, likewise, be
applicable x x x.
Hence, in the instant case, considering that neither
aggravating nor mitigating circumstance attended the
151

commission of the crime, the penalty to be imposed should be

within the range of prision correccional in its maximum period
to prision mayor in its medium period, as minimum, to
reclusion temporal in its minimum period, as maximum. We,
thus, modify the minimum penalty imposed by the trial court
to be four (4) years, two (2) months and one (1) day of
prision correccional. (Pil-Ey vs. People, G.R. No. 154941, July
9, 2007)

R.A. 7080: AN ACT DEFINING AND PENALIZING

THE CRIME OF PLUNDER
JURISPRUDENCE:
In
the
case
of
DEPAKAKIBO
GARCIA
vs.
SANDIGANBAYAN and REPUBLIC it was held by the Supreme
Court that The action of forfeiture arises when a public
officer or employee [acquires] during his incumbency an
amount of property which is manifestly out of proportion of
his salary x x x and to his other lawful income x x x. Such
amount of property is then presumed prima facie to have
been unlawfully acquired. Thus, if the respondent [public
official] is unable to show to the satisfaction of he court hat
he has lawfully acquired the property in question, then the
court shall declare such property forfeited in favor of the
State, and by virtue of such judgment the property aforesaid
shall become property forfeited in favor of the Stat.
FRATERNITIES, SORORITIES, AND
ORGANIZATIONS AND PROVIDING PENALTIES
THEREFORE.
REPUBLIC ACT NO. 8049.
Purpose:
Its purpose is to prevent the increasing number of
deaths due to hazing and other forms of initiation rites.
CONDITIONS OF A LEGAL HAZING OR INTITIATION RITES:

No hazing or initiation rites in any form or manner by a

fraternity, sorority or organization seven (7) days before the

152

conduct of such initiations. The written notice shall indicate

the period of the initiation activities which shall not exceed
three (3) days, shall include the names of those to be
subjected to such activities, and shall further contain an
undertaking that no physical violence be employed by
anybody during such initiation rites.
DECREE PENALIZING OBSTRUCTION OF
APPREHENSION AND PROSECUTION OF CRIMINAL
OFFENSES (P.D. 1829)
Purpose:
As stated in the law, its purpose is to discourage public
indifference or apathy towards the apprehension and
prosecution of criminal offenders, it is necessary to penalize
acts which obstruct or frustrate or tend to obstruct or
frustrate the successful apprehension and prosecution of
criminal offenders.
Agpalo Legal Ethics, UP Law Center, 1980 Edition.
Pp.405-406)
Acts which amount to obstruction in the administration
of justice may take many forms. They include such acts as
instructing a complaining witness in a criminal action not to
appear at the scheduled hearing so that the case against the
client, the accused, would be dismissed.
(Cantorne vs.
Ducasin supra) asking a client to plead guilty to a crime which
the lawyer knows his client did not commit, (Nueno v.
Santos, 58 Phil. 557 [1933]) advising a client who is detained
for a crime to escape from prison, (Cf. Medina v. Yan, G.R.
No. 30978, Sept. 30, 1974), employing dilatory tactics to
frustrate satisfaction of clearly valid claims, Pajares vs. Abad
Santos, G.R. No. 29543, Nove. 20, 1969, 30 SCRA 748)
prosecuting clearly frivolous cases as appeals to drain the
resources of the other party and compel him to submit out of
exhaustion (Samar Mining Co. vs. Arnado, GR No. 22304, July
30, 1968) and finding multiple petitions or complaints for
cause that has been previously rejected in the false
expectation of getting favorable action. (Gabriel vs. Court of
Appeals, G.R. No. 43757, July 30, 1976, 72 SCRA 173;
Ramos vs. Potenciano, G.R. No. 27104, Dec. 20, 1976, 74
SCRA 345; Macias v. Uy Kim, G.R. No. 31174, May 30, 1972,
153

45 SCRA 251) Acts of this or similar nature are grounds for

disciplinary action.
JURISPRUDENCE:
Posadas vs. Ombudsman,
September 2000)

(GR

No.

131492,

29

In this case, certain officials of the University of the

Philippines (UP) were charged for violating PD 1829. The UP
officers objected to the warrantless arrest of certain students
by the National Bureau of Investigation (NBI). According to
the Supreme Court, the police had no ground for the
warrantless arrest. The UP Officers, therefore, had a right to
prevent the arrest of the students at the time because their
attempted arrest was illegal. The need to enforce the law
cannot be justified by sacrificing constitutional rights.
Enrile vs. Hon. Amin, (G.R. No. 93335, Sept. 13, 1990)
In this case, Sen. Juan Ponce Enrile was charged under PD
1829, for allegedly accommodating Col. Gregorio Honasan by
giving him food and comfort on 1 December 1989 in his
house. Knowing that Colonel Honasan is a fugitive from
justice, Sen. Enrile allegedly did not do anything to have
Honasan arrested or apprehended. The Supreme Court ruled
that Sen. Enrile could not be separately charged under PD
1829, as this is absorbed in the charge of rebellion already
filed against Sen. Enrile.
RA NO. 6539:
AN ACT PREVENTING AND PENALIZING
CARNAPPING
A card holder who abandons or surreptitiously leaves
the place of employment, business or residence stated in his
application for credit card, without informing the credit card
company of the place where he could actually be found, if at
the time of such abandonment or surreptitious leaving, the
outstanding and unpaid balance is past due for at least ninety
(90) days and is more that ten thousand pesos (P10,000.00),
shall be prima facie presumed to have used his credit card
with intent to defraud.
154

The law provides for sixteen (16) prohibited acts which

refer to the production, use, possession of or trafficking in
unauthorized or counterfeit access devices. It also includes
acts deemed fraudulent that increase the amount involved in
commercial transactions using access devices.
Obtaining
money or anything of value through the use of an access
devise with intent to defraud or gain, and fleeing thereafter.
People of the Philippines, plaintiff-appellee, vs. Noel
Santos y Crispino and Feliciano Funcion alias JON-JON,
accused, G.R. No. 127500, June 8, 2000.
Carnapping, as defined by Republic Act No. 6539, or the
Anti-Carnapping Act, as amended, is the taking, with intent to
gain, of a motor vehicle belonging to another without the
latters consent, or by means of violence against or
intimidation of persons, by using force upon things. By the
amendment in Section 20 of Republic Act No. 7659, Section
14 of the Anti-Carnapping Act now makes clear, among
others, the intention of the law to make the offense a special
complex crime, by or intimidation of persons. Thus, under
the last clause of Section 14 of he Anti-Carnapping Act, the
prosecution not only has to prove the essential requisites of
carnapping and of the homicide or murder of Ruel Morales but
more importantly, it must show that the original criminal
design of he culprit was carnapping and that the killing was
perpetrated in the course of the commission of the
carnapping or on the occasion thereof. Needless to say,
where the elements of carnapping are not proved, the
provisions of the Anti Carnapping Act would cease to be
applicable and the homicide or murder (if proven) would be
punishable under the Revised Penal Code.
People of the Philippines, appellee, vs. Elgin Latayada,
(at large), appellant, G.R. No. 146865. February 18, 2004.
Under Section 2 of RA 6539, carnapping is the taking,
with intent to gain, of a motor vehicle belonging to another
without the latters consent; or by means of violence against
or intimidation of persons; or with the use of force upon
things . . . RA 7659 introduced three amendments to the last
clause of Section 14: (1) the change of the penalty from life
imprisonment to reclusion perpetua, (2) the inclusion of rape,
155

and (3) the change of the phrase in the commission of the

carnapping to in the course of the commission of the
carnapping or on the occasion thereof. The Court has held
that the third that the third amendment clarifies the intention
of the law to make the offense a special complex crime, in the
third amendment clarifies the intention of the law to make the
offense a special complex crime, in the same way, that
robbery with violence against or intimidation of persons is
treated under paragraphs 1 to 4 Article 294 of the Revised
Penal Code (RPC). Hence, the prosecution must prove not
only that the essential requisites of carnapping were present;
but also that it was the original criminal design of the culprit,
and that the killing was perpetrated in the course of the
commission of the carnapping or on the occasion thereof. In
the present case, the prosecution had the burden of proving
that 1) appellant took the motorcycle; 2) his original criminal
design was carnapping; 3) he killed Payla; and 4) the killing
was perpetrated in the course of the commission of the
carnapping or on the occasion thereof. It is indisputed that
the motorcycle driven by Payla had been taken without his
consent on October 29, 1995, and recovered days later in a
cannibalized condition. The elements of taking and intent to
gain were thus established. The prosecution also proved it
was appellant who had killed him. It failed, however, to
discharge its burden of proving the two other requisites of
carnapping.
People of the Philippines, plaintiff-appelee vs.
Gregorion Mejia y Villafania, Edwin Benito, Pedro
Paraan, and Joseph Fabito, accused-appellants, G.R.
Nos. 118940-41 & 119407. July 7, 1997
R.A. No. 7659 which took effect on 31 December 1993
is applicable to these cases because the crimes were
committed on 10 March 1994.
Section 14 of the AntiCarnapping Act was amended by Section 20 of RA No. 7659
and now imposes the penalty of reclusion perpetua to death
when the owner, driver, or occupant of the carnapped motor
vehicle is killed or raped in the course of the commission of
the carnapping or on the occasion thereof.
Three
amendments have this been made, viz: (1) the change of the
penalty of life imprisonment to reclusion perpetua, (2) the
inclusion of rape, and (3) the change of the phrase in te
commission of the carnapping to in the course of the
commission of the carnapping or on the occasion thereof.
156

The latter makes clear the intention of the law to make the
offense a special complex crime, by way of analogy vis--vis
paragraphs 1 to 4 of Article 294 of the Revised Penal Code on
robbery with violence against or intimidation of persons. As
such, the killing (or the rape) merely qualifies the crime of
carnapping in an aggravated from. In short, considering the
phraseology of the amended Section 14, the carnapping and
the killing (or the rape) may be considered as a single or
indivisible crime or a special complex crime which, however, is
not covered by Article 48 of the Revised Penal Code.
People of the Philippines, appellee, vs. Luisito D.
Bustinera, appellant.
Intent to gain or animus lucrandi is an internal act,
presumed from unlawful taking of the motor vehicle. Actual
gain is irrelevant as the important consideration is the intent
to gain. The term gain is not merely limited to pecuniary
benefit but also includes the benefit which in any other sense
may be derived or expected from the act which is performed.
Thus, the mere use of the thing which was taken without the
owners consent constitutes gain.
In Villacorta v. Insurance Commission which was
reiterated in Association of Baptists for World Evangelism, Inc.
v. Fielmens Insurance Co., Inc., Justice Claudio Teehankee
(later Chief Justice), interpreting the theft clause of an
insurance policy, explained that, when one takes the motor
vehicle of another without the latters consent even if the
motor vehicle is later returned, there is theft, there being
intent to gain as the use of the thing unlawfully taken
constitutes gain:
Assuming, despite the totally inadequate evidence, that
the taking was temporary and for joy ride, the Court
sustains as the better view that which holds that when a
person, either with the object of going to certain place, a
learning how to drive, or enjoying a free ride, takes
possession of a vehicle belonging to another, without the
consent of its owner, he is guilty of theft because by taking
possession of the personal property belonging to another and
using it, his intent to gain is evident since he derives
therefrom utility, satisfaction, enjoyment and pleasure.
Justice Ramon C. Aquino cites in his work Groizard who holds
157

that the use of a thing constitutes gain and Cuello Calon who
calls it hurt de uso.
(underscoring supplied; citation
omitted)
Lt. Gen. Alfonso P. Factoran, G.R. No. 101083, 30 July
1993
In the instant case, Edma did not resort to, or avail or,
any administrative remedy. He went straight to court and
filed a complaint for replevin and damages. Section 8 of
Presidential Decree No. 705, as amended, states that (1) all
actions and decisions of the Bureau of Forest Development
Director are subject to review by the DENR Secretary, (2) the
decisions of the DENR Secretary are appealable to the
President; and (3) courts cannot review the decisions of the
DENR Secretary except through a special civil action for
certiorari or prohibition. In Dy, the Court held that all actions
seeking to recover forest products in the custody of the DENR
shall be directed to that agency not the courts.
Leonardo Paat, et. al. v. Court of Appeals, et al., G.R.
No. 111107, 10 January 1997)
the enforcement of forestry laws, rules and regulations
and the protection, development and management of forest
lands fall within the primary and special responsibilities of the
Department of Environment and Natural Resources. By the
very nature of its function, the DENR should be given a free
hand unperturbed by judicial intrusion to determine a
controversy which is well within its jurisdiction.
The
assumption by the trial court, therefore, of the replevin suit
filed by private respondents constitutes and unjustified
encroachment into the domain of the administrative agencys
prerogative. The doctrine of primary jurisdiction does not
warrant a court to arrogate unto itself the authority to resolve
a controversy the jurisdiction over which is initially lodged
with an administrative body of special competence. Xxx.

DANGEROUS DRUG ACT OF 2002

(Republic Acts No. 9165)
DEFINITIONS OF TERMS

158

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.

159

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?
160

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.

161

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.
162

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

163

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
EMPLOYEES

OF

PUBLIC

OFFICERS

OR

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
164

appointive positions in the government, its divisions,

subdivisions, and intermediaries, including governmentowned 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

165

means involving his/her official status

facilitate the unlawful entry of the same

intended

to

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.
166

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
167

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

168

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;

169

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)

170

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 policymaking 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
171

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
172

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 nongovernment organization involved in dangerous drug
campaign to be appointed by the President of the
Philippines.
The Philippine
(PDEA)

Drug

Enforcement

Agency

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;
173

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
174

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,
175

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
176

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)

177

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
178

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

179

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 twentyfour (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
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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;

181

b.)He/She has not been previously committed to a

Center or to the care of a DOH-accredited
physician; and
c.) The Board favorably recommends that his/her
sentence be suspended.
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

182

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

183

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 reassigned 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 twentyfour (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 AND 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

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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

185

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)

186

BUY BUST OPERATION: PDEA NEED NOT BE INVOLVED

THEREIN
Appellant would next argue that the evidence against him was

obtained in violation of Sections 21 and 86 of Republic Act No.

9165 because the buy-bust operation was made without any
involvement of the Philippine Drug Enforcement Agency
(PDEA). Prescinding therefrom, he concludes that the
prosecutions evidence, both testimonial and documentary,
was inadmissible having been procured in violation of his
constitutional right against illegal arrest.
The argument is specious.

Section 86 of Republic Act No. 9165 reads:

SEC. 86. Transfer, Absorption, and Integration of All
Operating Units on Illegal Drugs into the PDEA and Transitory
Provisions. The Narcotics Group of the PNP, the Narcotics
Division of the NBI and the Customs Narcotics Interdiction
Unit are hereby abolished; however they shall continue with
the performance of their task as detail service with the PDEA,
subject to screening, until such time that the organizational
structure of the Agency is fully operational and the number of
graduates of the PDEA Academy is sufficient to do the task
themselves: Provided, That such personnel who are affected
shall have the option of either being integrated into the PDEA
or remain with their original mother agencies and shall,
thereafter, be immediately reassigned to other units therein
by the head of such agencies. Such personnel who are
transferred, absorbed and integrated in the PDEA shall be
extended appointments to positions similar in rank, salary,
and other emoluments and privileges granted to their
respective positions in their original mother agencies.
The transfer, absorption and integration of the different
offices and units provided for in this Section shall take effect
within eighteen (18) months from the effectivity of this Act:
Provided, That personnel absorbed and on detail service shall
be given until five (5) years to finally decide to join the PDEA.
Nothing in this Act shall mean a diminution of the
investigative powers of the NBI and the PNP on all other
crimes as provided for in their respective organic laws:

187

Provided, however, That when the investigation being

conducted by the NBI, PNP or any ad hoc anti-drug task force
is found to be a violation of any of the provisions of this Act,
the PDEA shall be the lead agency. The NBI, PNP or any of
the task force shall immediately transfer the same to the
PDEA: Provided, further, That the NBI, PNP and the Bureau of
Customs shall maintain close coordination with the PDEA on
all drug related matters.

Cursory read, the foregoing provision is silent as to

the consequences of failure on the part of the law
enforcers to transfer drug-related cases to the PDEA, in
the same way that the Implementing Rules and
Regulations (IRR) of Republic Act No. 9165 is also silent
on the matter. But by no stretch of imagination could this
silence be interpreted as a legislative intent to make an
arrest without the participation of PDEA illegal nor
evidence obtained pursuant to such an arrest
inadmissible.
(People vs. Sta. Maria, G.R. No. 171019, February 23, 2007)

POSEUR-BUYER, GENERALLY
NEED NOT TESTIFY

The testimony of the poseur-buyer or of the confidential

informant is no longer material considering that accusedappellants 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
188

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:

189

"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;
190

(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
evidence without further search;

seizure

of

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.

191

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 accusedappellant 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.
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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 accusedappellant 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
193

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 accusedappellant 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

194

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 be
rejected, 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 accused-appellant 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
195

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;
196

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.
x

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)
JURISPRUDENCE:

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)
TRENDS AND ISSUES IN CRIMINAL JURISPRUDENCE
197

HAND-OUT MATERIALS
(DANGEROUS DRUGS ACT-R.A. 9165)

Buy-Bust Operation, a form of entrapment; Decoy

Solicitation

A police officers act of soliciting drugs from the accused

during a buy-bust operation, or what is known as a decoy
solicitation is not prohibited by law and does not render
invalid the buy-bust operations. The safe of contraband is a
kind of offense habitually committed, and the solicitation
simply furnishes evidence of the criminals course of conduct
in People v. Sta. Maria, the Court clarified that a decoy
solicitation is not tantamount to inducement or instigation.
(People v. Botanes, G.R. No. 179150, June 17, 2008)
Method of Buy-Bust Operation
There is no textbook method of conducting buy-bust
operations. The Court has left to the discretion of police
authorities the selection of effective means to apprehend drug
dealers. A prior surveillance, much less a lengthy one, is not
necessary especially where the police operatives are
accompanied by their informant during the entrapment.
Flexibility is a trait of good police work. Xxx As to the
absence of a pre-arranged signal, same is not fatal to the
cause of the prosecution. The employment of a pre-arranged
signal, or the lack of it, is not indispensable in a buy-bust
operation. What determines if there was, indeed, a sale of
dangerous drugs is proof of the concurrence of all the
elements of the offense. (People v. Nicolas, G.R. No. 178876,
June 27, 2008)
Absence of a Prior Surveillance or Test Buy
Settled is the rule that prior surveillance is not a
prerequisite for the validity of an entrapment operation
especially so if the buy-bust learn is accompanied by the
informant. The police officers may decide that time is of the
essence and dispense with the need of prior surveillance.
The absence of a prior surveillance or test buy does not
affect the legality of the buy-bust operation. There is no
textbook method of conducting buy-bust operations. The
Court has left to the discretion of police authorities the
198

selection of effective means to apprehend drug dealers.

Furthermore, if a police operation requires immediate
implementation, time is of the essence and only hasty
preparations are sometimes possible. What is important is
whether the speed of preparation compromised the rights of
the accused. (Norgie Cruz v. People, G.R. No. 164580, Feb. 6,
2009)
Presumption of Regularity
It is settled rule that in cases involving violations of the
Comprehensive Dangerous Drugs Act, credence is given to
prosecution witnesses who are police officers for they are
presumed to have performed their duties in a regular manner,
unless there is evidence to the contrary. In this case, no
evidence was adduced showing any irregularity in any
material aspect of the conduct of the buy-bust operation.
Neither was there any proof that the prosecution witnesses
who were members of the buy-bust operation team,
particularly those whose testimonies were in question, were
impelled by any ill-feeling or improper motive against
appellants which would raise a doubt about their credibility.
(People v. Darisan, et.al., G.R. No. 176151, Jan. 30, 2009;
People v. Llamado, G.R. No. 185278, March 13, 2009)
The Objective Test
In determining the credibility of prosecution witnesses
regarding the conduct of buy-bust operation, the objective
test, as laid down in People v. Doria, is utilized. It has been
held that it is the duty of the prosecution to present a
complete picture detailing the buy-bust operationfrom the
initial contact between the poseur-buyer and the pusher, the
offer to purchase, the promise or payment of the
consideration, until the consummation of the sale by the
delivery of the illegal subject of sale. The manner by which
the initial contact was made, the offer to purchase the drug,
the payment of the buy-bust money, and the delivery of the
illegal drug must be the subject of strict scrutiny by courts to
insure that law-abiding citizens are not unlawfully induced to
commit an offense. (People v. Ong, G.R. No. 175940, Feb. 6,
2008)

199

Buy-Bust Transaction, How Consummated

When what is involved is a prosecution for illegal sale of
regulated or prohibited drugs, conviction can be had if the
following elements are present: (1) the identity of the buyer
and the seller, the object, and the consideration; and (2) the
delivery of the thing sold and the payment therefor. What is
material is the proof that the transaction or sale actually took
place, coupled with the presentation in court of the corpus
delicti of the crime. The delivery of the contraband to the
poseur-buyer and the receipt of the marked money
consummate
the
buy-bust
transaction
between
the
entrapment officers and the accused. The crime of illegal sale
of dangerous drugs is committed as soon as the sale
transaction is consummated.
(People v. Encila, G.R. No.
182419, Feb. 10, 2009)
Proof of Buy-Bust
Neither law nor jurisprudence requires the presentation
of any of the money used in a buy-bust operation, much less
is it required that the boodle money be marked or entered in
the police blotter.
xxx Well-settled is the rule that the
testimony of an informant who witnessed the illegal sale of
shabu is not essential for conviction and may be dispensed
with if the poseur-buyer testified on the same, because the
informants testimony would merely corroborate that of the
poseur-buyer. (People v. Santiago, et.al., G.R. No. 175326,
Nov. 28, 2007)
Presentation of Money Used; Buy Bust Operation
In the case of People v. Mala, we held that what is
material is the proof that the transaction actually took place,
coupled with the presentation before the court of the corpus
delicti.
It bears emphasizing that neither the law nor
jurisprudence requires the presentation of any of the money
used in a buy-bust operation, for the only elements necessary
to consummate the crime is proof that the illicit transaction
took place, coupled with the presentation in court of the illicit
drug as evidence. (People v. Quiaoit, Jr., G.R. No. 175222,
July 27, 2007)
Marked Money Not Indispensable, Corroborative in
Nature
200

The failure to present the buy-bust money is not fatal.

The marked money used in the buy-bust operation is not
indispensable but merely corroborative in nature. In the
prosecution for the sale of dangerous drugs, the absence of
marked money does not create a hiatus in the evidence for
the prosecution as long as the sale of dangerous drugs is
adequately proven nd the drug subject of the transaction is
presented before the court. Neither law nor jurisprudence
requires the presentation of any money used in the buy-bust
operation. What is material to a prosecution for illegal sale of
dangerous drugs is the proof that the transaction or sale
actually took place, coupled with the presentation in court of
the corpus delicti as evidence. (Norgie Cruz v. People, G.R.
No. 164580, Feb. 6, 2009)
Failure to Record the Boodle Money
The failure of the PDEA operatives to record the boodle
money will not render the buy-bust operation illegal. The
recording of marked money used in a buy-bust operation is
not one of the elements for the prosecution of sale of illegal
drugs. The recording or non-recording thereof in an official
record will not necessarily lead to an acquittal as long as the sale of
the prohibited drug is adequately proven. (People v. Clemente,
et.al., G.R. No. 178876, June 27, 2008)

Failure to Present Informant

That the informant was not presented by the
prosecution does not prejudice the States case as all the
elements of illegal sale and possession of shabu by appellant
were satisfactorily proved by testimonial, documentary and
object evidence. At best, the testimony of the informant
would only have been corroborative of the testimonies of PO2
Barrameda and PO2 Igno. It is not indispensable. People v.
Uy explains:
The failure to present the informer did not diminish the
integrity of the testimony of the witnesses for the prosecution.
Informers are almost always never presented in court because
of the need to preserve their invaluable service to the police.
Their testimony or identity may be dispensed with since his or
her narration would be merely corroborative, as in this case,
when the poseur-buyer himself testified on the sale of the

201

illegal drug. (Underscoring supplied) (People v. Garcia, G.R.

No. 172975, August 8, 2007; People v. Botanes, G.R. No.
179150, June 17, 2008; People v. Bohol, G.R. No. 171729,
July 28, 2008; People v. Naquita, G.R. No. 180511, July 28,
2008)
Simultaneous Exchange of the Marked Money and
Prohibited Drugs Not Necessary
Appellants argument that the poseur-buyer was not able to
strike a deal or a sale because one of the elements of the
crime charged was wanting payment by the poseur-buyer
for the thing sold or receipt of the marked money by the seller
of the dangerous drugs is erroneous. Xxx There is no rule of
law which requires that in buy-bust operations there must be
a simultaneous exchange of the marked money and the
prohibited drug between the poseur-buyer and the pusher.
It must be emphasized that appellants were charged
with selling, trading, delivering, giving away, dispatching in
transit and transporting dangerous drugs under Section 5,
Article II of Republic Act No. 9165. The charge was not
limited to selling. Said section punishes not only the sale but
also the mere act of delivery of prohibited drugs after the
offer to buy by the entrapping officer has been accepted by
the seller.
In the distribution of prohibited drugs, the
payment of any consideration is immaterial. The mere act of
distributing the prohibited drugs to others is in itself a
punishable offense. (People v. Clemente, et.al., G.R. No.
178876, June 27, 2008)
Pre-operation Orders and Post Operation Report
The non-presentation of pre-operation orders and post
operation report is not fatal to the cause of the prosecution,
because they are not indispensable in a buy-bust operation.
What determines if there was, indeed, a sale of dangerous
drugs is proof of the concurrence of all the elements of the
offense; to wit: (1) the identity of the buyer and the seller,
the object, and consideration; and (2) the delivery of the
thing sold and the payment therefor, which the prosecution
has satisfactorily established. (People v. Dumlao, G.R. No.
181599, August 20, 2008)
The Chain of Custody Requirement

202

Board Regulation No. 1, series of 2002 defines chain of

custody as the duly recorded authorized movements and
custody of seized drugs or controlled chemicals or plant
sources of dangerous drugs or laboratory equipment of each
stage, from the time of seizure/confiscation to receipt in the
forensic laboratory to safekeeping to presentation in court for
destruction.
As a method of authenticating evidence, the chain of
custody rule requires that the admission of the exhibit be
preceded by evidence sufficient to support a finding that the
matter in question is what the proponent claims it to be. It
would thus include testimony about every link in the chain,
from the moment the item was seized to the time it is offered
in court as evidence, such that every person who handled the
same would admit how and from whom it was received, where
it was and what happened to it while in the witness
possession, the condition in which it was received and the
condition in which it was delivered to the next link in the
chain.
The same witnesses would then describe the
precautions taken to ensure that there had been no change in
the condition of the item and no opportunity for someone not
in the chain to have possession of the same. It is from the
testimony of every witness sho handled the evidence from
which a reliable assurance can be derived that the evidence
presented in court is one and the same as that seized from
the accused. (People v. Obmiranis, G.R. No. 181492, Dec. 16,
2008; People v. Ruiz Garcia, G.R. No. 173480, Feb. 25, 2009;
People v. Cervantes, G.R. No. 181494, March 17, 2009)
Physical inventory and photograph
Requirement under Section 21
vis--vis marking of seized evidence
While the first sentence of Section 21(a) of the
Implementing Rules and Regulations of R.A. No. 9165 states
that the apprehending officer/team having initial custody and
control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same,
the second sentence makes a distinction between warrantless
seizures and seizures by virtue of a warrant, thus:
(a) x x x
Provided, that the physical inventory and
photograph shall be conducted at the place where the search
warrant is served; or at the nearest police station or at the

203

nearest office of the apprehending officer/team, whichever is

practicable, in case of warrantless seizures; Provided, further
grounds, as long as the integrity and the evidentiary value of
the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of
and custody over said items. [Emphasis supplied]
Thus, the venues of the physical inventory and
photography of the seized items differ and depend on whether
the seizure was made by virtue of a search warrant or
through a warrantless seizure such as a buy-bust operation.
In seizures covered by search warrants, the physical
inventory and photograph must be conducted in the place
where the search warrant was served. On the other hand, in
case of warrantless seizures such as a buy-bust operation, the
physical inventory and photograph shall be conducted at the
nearest police station or office of the apprehending
officer/team, whichever is practicable; however, nothing
prevents the apprehending officer/team from immediately
conducting the physical inventory and photography of the
items at the place where they were seized, as it is more in
keeping with the laws intent of preserving their integrity and
evidentiary value. (People v. Sanchez, G.R. No. 175822,
October 15, 2008)
Mandatory Drug Testing
Section 36 of R.A. 9165 provides:
SEC. 36 Authorized Drug Testing ---Authorized drug
testing shall be done by any government forensic laboratories
accredited and monitored by the DOH to safeguard the quality
of the test results. x x x The drug testing shall employ, among
others, two (2) testing methods, the screening test which will
determine the positive result as well as the type of drug used
and the confirmatory test which will confirm a positive
screening test. x x x The following shall be subjected to
undergo drug testing:

xxxx

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(c) Students of secondary and tertiary schools.

---Students of secondary and tertiary schools shall, pursuant
to the related rules and regulations as contained in the
schools student handbook and with notice to the parents,
undergo a random drug testing x x x;
(d) 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 rules
and regulations, x x x for purposes of reducing the risk in the
workplace. Any officer or employee found positive for use of
dangerous drugs shall be dealt with administratively which
shall be a ground for suspension or termination, subject to the
provisions of Article 282 of the Labor Code and pertinent
provisions of the Civil Service Law;
xxxx
(f) 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 undergo a mandatory drug test.
(g) All candidates for public office whether appointed or
elected both in the national or local government shall undergo
a mandatory drug test.
In addition to the above stated penalties in this Section,
those found to be positive for dangerous drugs use shall be
subject to the provisions of Section 15 of this Act.
On the Unconstitutionality of Sec. 36 (g) of RA 9165
Sec. 36(g) of RA 9165, as sought to be implemented by
the assailed COMELEC resolution, effectively enlarges the
qualification requirements enumerated in the Sec. 3, Art. VI of
the Constitution. As couched, said Sec. 36 (g) unmistakably
requires a candidate for senator to be certified illegal-drug
clean, obviously as a pre-condition to the validity of a
certificate of candidacy for senator or, with like effect, a
condition sine qua non to be voted upon and, if proper, be
proclaimed as senator-elect.
The COMELEC resolution
completes the chain with the proviso that no person elected

205

to any public office shall enter upon the duties of his office
until he has undergone mandatory drug test.
Viewed, therefore, in its proper context, Sec. 36(g) of
RA 9165 and the implementing COMELEC Resolution add
another qualification layer to what the 1987 Constitution, at
the minimum, requires for membership in the Senate.
Whether or not he drug-free bar set up under the challenged
provision is to be hurdled before or after election is really of
no moment, as getting elected would be of little value if one
cannot assume office for non-compliance with the drugtesting requirement.
(Pimentel v. COMELEC, G.R. No.
161658, Nov. 3, 2008)
On the Constitutionality of Sec. 36 (c), (d), and (f) of
RA 9165 for secondary and tertiary level students and public
and private employees, while mandatory, is a random and
suspicionless arrangement. The objective is to stamp out
illegal drug and safeguard in the process the well being of
[the] citizenry, particularly the youth, from the harmful effects
of dangerous drugs. This statutory purpose, per the policydeclaration portion of the law, can be achieved via the pursuit
by the state of an intensive and unrelenting campaign
against the trafficking and use of dangerous drugs x x x
through an integrated system of planning, implementation
and enforcement of anti-drug abuse policies, programs and
projects.
Guided by Vernonia and Board of Education, the Court is
of the view and so holds that the provisions of RA 9165
requiring mandatory, random, and suspicionless drug testing
of students are constitutional.
Indeed, it is within the
prerogative of educational institutions to require, as a
condition for admission, compliance with reasonable school
rules and regulations and policies. To be sure, the right to
enroll is not absolute; it is subject to fair, reasonable, and
equitable requirements.
Just as in the case of secondary and tertiary level
students, the mandatory but random drug test prescribed by
Sec. 36 of RA 9165 for officers and employees of public and
private offices is justifiable, albeit not exactly for the same
reason. The Court notes in this regard that petitioner SJS,
other that saying that subjecting almost everybody to drug
testing, without probable cause, is unreasonable, an
206

unwarranted intrusion of the individual right to privacy, has

failed to show how the mandatory, random, and suspicionless
drug testing under Sec. 36(c) and (d) of RA 9165 violates the
right to privacy and constitutes unlawful and/or unconsented
search under Art. III, Secs. 1 and 2 of the Constitution.
Notably, RA 9165 does not oblige the employer
concerned to report to the prosecuting agencies any
information or evidence relating to the violation of the
Comprehensive Dangerous Drugs Act received as a result of
the operation of the drug testing. All told, therefore, the
intrusion into the employees privacy, under RA 9165, is
accompanied by proper safeguards, particularly against
embarrassing leakages of test results, and is relatively
minimal. (Social Justice Society v. PDEA, G.R. No. 157870,
Nov. 3, 2008)
Unlike the situation covered by Sec. 36(c) and (d) of RA
9165, the Court finds no valid justification for mandatory drug
testing for persons accused of crimes.
In the case of
students, the constitutional viability of the mandatory,
random, and suspicionless drug testing for students emanates
primarily from the waiver by the students of their right to
privacy when they seek entry to the school, and from their
voluntarily submitting their persons to the parental authority
of school authorities.
In the case of private and public
employees, the constitutional soundness of the mandatory,
random, and suspicionless drug testing proceeds from the
reasonableness of the drug test policy and requirement.
When persons suspected of committing a crime are
charged, they are singled out and are impleaded against their
will. The persons thus charged, by the bare fact of being
haled before the prosecutors office and peaceably submitting
themselves to drug testing, if that be the case, do not
necessarily consent to the procedure, let alone waive their
right to privacy. To impose mandatory drug testing on the
accused is a blatant attempt to harness a medical test a tool
for criminal prosecution, contrary to the stated objectives of
RA 9165. Drug testing in this case would violate a persons
right to privacy guaranteed under Sec. 2, Art. III of the
Constitution. Worse still, the accused drugs, plant sources of
dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or

207

laboratory
equipment
so
confiscated,
seized
and/or
surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and
control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in
the presence of the accused or the person/s from whom such
items
were
confiscated
and/or
seized,
or
his/her
representative or counsel, a representative from the media
and the Department of Justice (DOJ), and any elected public
official who shall be required to sign the copies of the
inventory and be given a copy thereof.
Non-compliance by the apprehending/buy-bust team
with Section 21 is not fatal as long as there is justifiable
ground therefor, and as long as the integrity and the
evidentiary value of the confiscated/seized items, are properly
preserved by the apprehending officer/team.
Its noncompliance will not render an accuseds arrest illegal or the
items seized/confiscated from him inadmissible. What is of
utmost importance is the preservation of the integrity and the
evidentiary value of the seized items, as the same would be
utilized in the determination of the guilt or innocence of the
accused. (People v. Del Monte, G.R. No. 179940, April 23, 2008;
People v. Clemente, et.al., G.R. No. 178876, June 27, 2008; People
v. Macatingag, G.R. No. 181037, January 19, 2009)

Assuming that Sections 21 and 86 were indeed

breached, appellant should have raised these issues before
the trial court. This, he did not do. Never did he question the
custody and disposition of the items that were supposedly
taken from him. It was only on appeal before the Court of
Appeals that he raised them. This, he cannot do. We held:
The law excuses non-compliance under justifiable
grounds. However, whatever justifiable grounds may excuse
the police officers involved in the buy-bust operation in this
case from complying with Section 21 will remain unknown,
because appellant did not question during trial the
safekeeping of the items seized from him. Indeed, the police
officers alleged violations of Sections 21 and 86 of Republic
Act 9165 were not raised before the trial court but were raised
instead for the first time on appeal. In no instance did
appellant least intimate at the trial court that were lapses in
the sakekeeping of the seized items that affected their

208

integrity and evidentiary value. Objection t evidence cannot

be raised for the first time on appeal; when a party desires
the court to reject the evidence offered, he must so state in
the form of objection. Without such objection he cannot raise
the question for the first time on appeal.
(People v.
Pringas, G.R. No. 175928, August 31, 2007)
Transfer of Drug-Related cases to PDEA (Sections 21 &
86 of R.A. 9165)
To recapitulate, the challenged buy-bust operation,
albeit made without the participation of PDEA, did not violate
appellants constitutional right to be protected from illegal
arrest. There is nothing in Republic Act No. 9165 which even
remotely indicate the intention of the legislature to make an
arrest made without the participation of the PDEA illegal and
evidence obtained pursuant to such an arrest inadmissible.
Moreover, the law did not deprive the PNP of the power to
make arrests. (People v. Sta. Maria, G.R. No. 171019,
February 23, 2007)
Negative Allegation
The general rule is that if a criminal charge is predicated
on a negative allegation, or a negative averment is an
essential element of a crime, the prosecution has the burden
to prove the charge. However, this rule admits of exceptions.
Where the negative of an issue does not permit of direct
proof, or where the onus probandi rests upon him.
Stated otherwise, it is not incumbent on the prosecution to
adduce positive evidence to support a negative averment the
truth of which is fairly indicated by established circumstances
and which, if untrue, could readily be disproved by the
production of documents or other evidence within the
defendants knowledge or control. For example, where a
charge is made that a defendant carried on a certain business
without a license (as in the case at bar, whether the accused
is charged with the sale of a regulated drug without
authority), the fact that he has a license is a matter which is
peculiarly within his knowledge and he must establish that
fact or suffer conviction. x x x (italics in the original) (Su Zhi
Shan @ Alvin Ching So, v. People G.R. No. 169933,
March 9, 2007)
209

Limited Application of the RPC on R.A. 9165

With the aforesaid section, the provisions of the Revised
Penal Code shall no longer apply to the provisions of the
Drugs law except when the offender is a minor. Thus, Article
63(2) of the Revised Penal Code shall not be used in the
determination of the penalty to be imposed on the accused.
Since Section 98 of the Drugs law contains the word shall,
the non-applicability of the Revised Penal Code provisions is
mandatory, subject only to the exception in case the offender
is a minor.
(People v. Nicolas, G.R. No. 170234,
February 8, 2007)
In accordance with Section 98, Article XIII of Republic
Act No. 9165, the provisions of the Revised Penal Code find
limited applicability with respect to the provisions of the said
Act. Section 98 reads:
Sec. 98. Limited Applicability of the Revised
Penal Code. - Notwithstanding any law, rule or
regulation to the contrary, the provisions of the
Revised Penal Code (Act No. 3815), as amended,
shall not apply to the provisions of this Act, except
in the case of minor offenders. Where the offender
is a minor, the penalty for acts punishable by life
imprisonment to death provided herein shall be
reclusion perpetua to death.

Thus, in determining the imposable penalty, Article

63(2) of the Revised Penal Code shall not be applied. Under
this article, in all cases in which the law prescribes a penalty
composed of two indivisible penalties, the lesser penalty shall
be applied when there are neither mitigating nor aggravating
circumstances. Since Section 98 of the Drugs Law contains
the word shall, the non-applicability of the Revised Penal
Code provisions is mandatory, subject to exception only in
case the offender is a minor. (People v. Santos, G.R. No.
176735, June 26, 2008)

210

RECENT CASES on Section 21 of RA 9165

ACQUITTAL:
-

Cacao v. People, G.R. No. 180870, January 22, 2010

The patent inconsistency between the testimonies of
Mangapit and Pang-ag, on one hand, and the testimony of
Ancheta on the other hand, necessarily leads to doubt that
the plastic sachet of shabu identified in court is the same item
that was allegedly seized and confiscated from petitioner. At
any rate, the identification made by the witnesses on the item
allegedly seized from petitioner is rendered meaningless and
bereft of probative value in view of the categorical denial of
the evidence custodian that he received the same from
Mangapit. Hence, there can be no crime of illegal possession
of a prohibited drug when nagging doubts persist on whether
the item confiscated was the same specimen examined and
established to be the prohibited drug.

People v. Kamad, G.R. No. 174198, January 19, 2010

The following links must be established ion the chain of
custody in a buy-bust situation:
first, the seizure and
marking, if practicable, of the illegal drug recovered from the
accused by the apprehending officer; second, the turnover of
the illegal drug seized by the apprehending officer to the
investigating officer; third, the turnover by the investigating
officer of the illegal drug to the forensic chemist for laboratory
examination; and fourth, the turnover and submission of the
marked illegal drug seized from the forensic chemist to the
court. In this case, however, SPO2 Sanchez testimony lacks
specifics on how the seized shabu was handled immediately
after the accused-appellants arrest.
SPO2 Sanchez
testimony regarding the post-arrest police investigation failed
to provide particulars on whether the shabu was turned over
to the investigator. The pieces of evidence notably fail to
identify the person who personally brought the seized shabu
to the PNP Crime Laboratory. They also fail to clearly identify
the person who received the shabu at the forensic laboratory.
There was also non-compliance with the prescribed
procedure under Sec. 21 of RA 9165. SPO2 Sanchez failed to
provide specific details on how the seized shabu was marked
211

although the evidence shows that the shabu was marked as

ES-1-161009 before it was sent to a forensic laboratory. His
testimony also failed to state whether the marking of the
shabu was done immediately after its seizure (as Section 21
of RA 9165 requires) or during the investigation.
His
testimony likewise failed to disclose if a physical inventory and
photography of the seized items had taken place, or if they
had, whether these were undertaken in the presence of the
accused or his counsel, or a representative from the media
and the Department of Justice, and of an elective official.
-

People v. Frondozo, G.R. No. 177164, June 30, 2009

To establish the identity of the shabu seized from
Frondozo, the procedures laid down in Rep. Act No. 9165
should be complied with. Section 21 of the Implementing
Rules and Regulations of Rep. Act No. 9165 clearly outlines
the post-seizure procedure in taking custody of seized drugs.
It states: (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 therof.
In this case, the arresting officers failed to strictly
comply with the procedures for the custody and disposition of
confiscated dangerous drugs as prescribed by Rep. Act No.
9165.
The arresting officers did not mark the shabu
immediately after they arrested Frondozo. Further, while
there was testimony regarding the marking of the shbu after
it was turned over to the police investigator, no evidence was
presented to prove that the marking therof was done in the
presence of Frondozo. Also, fatal in the prosecutions case is
the failure of the arresting officers to take a photograph and
make an inventory of the confiscated materials in the
presence of Frondozo. Likewise, there was no mention that
any representative from the media, DOJ or any elected public
official had been present during the inventory or that any of
these persons had been required to sign the copies of the
inventory.
212

People v. Partoza, G.R. No. 182418, May 8, 2009

PO3 Tougan testified that he marked the two plastic
sachets containing white crystalline substance in the police
station.
However, he did not mark the seized drugs
immediately after he arrested appellant in the latters
presence. Neither did he make an inventory and take a
photograph of the confiscated items in the presence of
appellant. There was no representative from the media and
the Department of Justice, or any elected public official who
participated in the operation and who were supposed to sign
and inventory of seized items and be given copies thereof.
None of these statutory safeguards were observed.
While non-compliance by the buy-bust team with Section
21 is not fatal as long as there is a justifiable ground
therefore, and as long as the integrity and the evidentiary
value of the confiscated/seized items are properly preserved
by the apprehending team, yet these conditions were not met
in the case at bar. No explanation was offered by PO3 Tougan
for his failure to observe the rule. Furthermore, while PO3
Tougan admitted to have in his possession the shabu from the
time appellant was apprehended at the crime scene to the
police station, records are bereft of proof on how the seized
items were handled from the time they left the hands of PO3
Tougan. PO3 Tougan mentioned a certain Inspector Manahan
as the one who signed the request for laboratory examination.
He did not however relate to whom the custody of the drugs
was turned over.
Furthermore, the evidence of the
prosecution did not reveal the identity of the person who had
the custody and safekeeping of the drugs after its
examination and pending presentation in court. The failure of
the prosecution to establish the chain of custody is fatal to its
cause. All told, the identity of the corpus delicti in this case
was not proven beyond reasonable doubt.

People v. Robles, G.R. No. 177220, April 24, 2009

The Court finds that the prosecution failed to clearly
establish the chain of custody of the seized plastic sachet
containing shabu subject of the alleged sale. PO2 Besona and
PO3 Malicse did not adequately explain how the corpus delicti
transferred hands from the time it was supposedly confiscated
213

from appellant to the time it was presented in court as

evidence.
PO2 Besona testified that he turned over the
sachet of shabu to SPO3 Ocfemia when appellant was
arrested. No explanation was given, however, as to how the
substance reached the crime laboratory for examination. PO2
Besona did not mark the substance immediately after the
apprehension of appellant. While PO2 Besona claimed that it
was marked by an investigator in his presence, he did not
state at what precise point of the operation the marking took
place.
Both the investigator who purportedly made the
marking and SPO3 Ocfemia were not presented in court to
testify on what transpired before and after the substance was
turned over to them. Additionally, nothing on record shows
compliance by the buy-bust team with the procedural
requirements of Section 21, paragraph 1 of Article II of R.A.
No. 9165_with respect to custody and disposition of
confiscated drugs.
There was no physical inventory and
photograph of the items allegedly confiscated from appellant.
There was likewise no explanation offered for the failure to
observe the rule. The failure of the police to comply with the
procedure in the custody of seized drugs raises doubt as to
their origins, and negates the operation of the presumption of
regularity accorded to police officers.
-

Sales v. People, G.R. No. 182296, April 7, 2009

Neither physical inventory nor photograph of the sachet
and buy-bust money taken in the presence of petitioner, or
her representative or counsel, a representative from the
media and the Department of Justice, as required by law, was
taken.
No justification whatsoever was proffered by the
apprehending team for its failure to observe the legal
safeguards.

Carino v. People, G.R. No. 178757, March 13, 2009

The prosecution has not shown that they had extended
reasonable efforts to comply with the statutory requirements
in handling the evidence.
From the testimonies of the
members of the arresting team, it is clear that they
immediately seized the plastic sachets, took custody thereof
and brought the same to the police station. It was at the
police stationand not at the place where the item was seized
214

from appellantwhere the unnamed police investigator had

placed the markings on the specimens.
Moreover the
markings were placed not in the presence of petitioners as
required by law. These flaws in the conduct of the postseizure custody of the dangerous drug allegedly recovered
from petitioners, taken together with the failure of the key
persons who handled the same to testify on the whereabouts
of the exhibits before they were offered in evidence in court,
militate against the prosecutions cause because they not only
cast doubt on the identity of the corpus delicti but also tend to
negate, if not totally discredit, the claim of regularity in the
conduct of official police operation advanced by the OSG.
-

People v. Garcia, G.R. No. 173480, February 25, 2009

Other than the markings made by PO1 Garcia and the
police investigator (whose identity was not disclosed), no
physical inventory was ever made, and no photograph of the
seized items was taken under the circumstances required by
R.A. No. 9165 and its implementing rules. While there was
testimony with respect to the marking of the seized items at
the police station, no mention whatsoever was made on
whether the marking had been done in the presence of Ruiz
or his representatives. There was likewise no mention that
any representative from the media and the Department of
Justice, or any elected official had been present during this
inventory, or that any of these people had been required to
sign the copies of the inventory. In addition, while PO1 Garcia
duly testified on the identity of the buyer and seller, on the
consideration that supported the transaction, and on the
manner the sale took place, -the prosecutions evidence failed
to establish the chain that would have shown that the
marijuana presented in court was the very item seized from
Ruiz at the time of his arrest.

People v. Obmiranis, G.R. No. 181492, December 16,

2008
Board Regulation No. 1, series of 2002 defines chain of
custody as the duly recorded authorized movements and
custody of seized drugs or controlled chemicals or plant
sources of dangerous drugs or laboratory equipment of each
stage, from the time of seizure/confiscation to receipt in the
215

forensic laboratory to safekeeping to presentation in court for

destruction.
It must be established with unwavering
exactitude that the dangerous drug presented in court as
evidence against the accused is the same as that seized from
him in the first place. The chain of custody requirement
performs this function in that it ensures that unnecessary
doubts concerning the identity of the evidence are removed.
The prosecution evidence in the case at bar, however, does
not suffice to afford such assurance. Cinco, who, according to
Velasco, took initial custody of the plastic sachet at the time
of arrest and who allegedly marked the same with the initials
SOO at the police station, was not even presented in court.
The same is true with respect to the laboratory for analysis
and testing. Aside from that, it was not reasonably explained
why these same witnesses were not able to testify in court.
Furthermore, Velasco, the leader of the raiding team,
admitted that as soon as appellant was arrested, Cinco had
taken custody of the plastic sachet of shabu, placed it in his
pocket and brought the same together with appellant to the
police station. It was at the police station and not at the
place where the item was seized from appellant where
according to him (Velasco), Cinco had placed the initials
SOO on the specimen. Velasco could not even remember
whether or not the specimen had been properly inventoried
and photographed at least in appellants presence. Even more
telling is the fact that, as elicited from Velasco himself during
his cross-examination, no evidence custodian had been
designated by the raiding team to safeguard the identity and
integrity of the evidence supposedly seized from appellant.
-

Bondad v. People, G.R. No. 173804, December 10, 2008

Failure of the apprehending officers to comply with the
inventory and photographing requirements of Section 21 RA
9165 compromised the identity of the items seized, which is
the corpus delicti of the crimes charged.

People v. Magat, G.R. No. 179939, September 29, 2008

It is indisputable that the procedures for the custody and
disposition of confiscated dangerous drugs in Section 21 of
R.A. No. 9165_were not complied with. PO1 Santos admitted
216

that he marked the two plastic sachets containing white

crystalline substance in the police station. He did not mark
the seized items immediately after he arrested appellant in
the latters presence. He also did not make an inventory and
take a photograph of the confiscated materials in the presence
of appellant. Other that the three policemen, there were no
other people who participated in the alleged buy-bust
operation._There was no representative from the media and
the Department of Justice, or any elected public official who
participated in the operation and who were supposed to sign
an inventory of seized items and be given copies thereof.
None of the statutory safeguards were observed. Although
PO1 Santos had written his initials on the two plastic sachets
submitted to the PNP Crime Laboratory Office for examination,
it was not indubitably shown by the prosecution that PO1
Santos immediately marked the seized drugs in the presence
of appellant after their alleged confiscation. There is doubt as
to whether the substances seized from appellant were the
same ones subjected to laboratory examination and presented
in court.
R.A. No. 9165 had placed upon the law enforcers the duty
to establish the chain of custody of the seized drugs to ensure
the integrity of the corpus delicti.
Thru proper exhibit
handling, storage, labeling and recording, the identity of the
seized drugs is insulated from doubt from their confiscation up
to their presentation in court. While the seized drugs may be
admitted in evidence, it does not necessarily follow that the
same should be given evidentiary weight if the procedure in
Section 21 of R.A. No. 9165 was not complied with. The
Court stressed that the admissibility of the seized dangerous
drugs in evidence should not be equated with its probative
value in proving the corpus delicti.
The admissibility of
evidence depends on its relevance and competence while the
weight of evidence pertains to evidence already admitted and
its tendency to convince and persuade. All told, the corpus
delecti in this case is not legally extant.
-

Malillin v. People, G.R. No. 172953, April 30, 2008

Section 21-of the Implementing Rules and Regulations of
R.A. No. 9165 clearly outlines the post-seizure procedure in
taking custody of seized drugs. In a language too plain to
require a different construction, it mandates that the officer
217

acquiring initial custody of drugs under a search warrant must

conduct the photographing and the physical inventory of the
item at the place where the warrant has been served.
Esternon deviated from this procedure. It was elicited from
him that at the close of the search of petitioners house, he
brought the seized items immediately to the police station for
the alleged purpose of making a true inventory thereof, but
there appears to be no reason why a true inventory could not
be made in petitioners house when in fact the apprehending
team was able to record and mark the seized items and there
and then prepare a seizure receipt therefore. Lest it be
forgotten, the raiding team has had enough opportunity to
cause the issuance of the warrant which means that it has had
as much time to excuse non-compliance therewith, the same
cannot benefit the prosecution as it failed to offer any
acceptable justification for Esternons course of action.
Likewise, Esternons failure to deliver the seized items to
the court demonstrates a departure from the directive in the
search warrant that the items seized be immediately delivered
to the trial court with a true and verified inventory of the
same,-as required by Rule 126, Section 12 of the Rules of
Court.
People v. Go characterized this requirement as
mandatory in order to preclude the substitution of or
tampering with said items by interested parties. Thus, as a
reasonable safeguard, People vs. Del Castillo declared that the
approval by the court which issued the search warrant is
necessary before police officers can retain the property seized
and without it, they would have no authority to retain
possession thereof and more so to deliver the same to
another agency.
Mere tolerance by the trial court of a
contrary practice does not make the practice right because it
is violative of the mandatory requirements of the law and it
thereby defeats the very purpose for the enactment.
-

People v. Orteza, G.R. No. 173051, July 31, 2007

The records do not show that police officers complied with
the proper procedure in the custody of seized drugs and/or
paraphernalia
should,
immediately
after
seizure
or
confiscation, have the same physically inventoried and
photographed in the presence of the accused, if there be any,
and or his representative, who shall be required to sign the
copies of the inventory and be given a copy thereof. The
218

failure of the agents to comply with the requirement raises

doubt whether what was submitted for laboratory examination
and presented in court was actually recovered from appellant.
It negates the presumption that official duties have been
regularly performed by the police officers.
CONVICTION:
-

People v. De Leon, G.R. No. 186471, January 25, 2010

Sec. 21 of RA 9165 need not be followed as an exact
science. Non-compliance with Sec. 21 does not render an
accuseds arrest illegal or the items seize/confiscated from
him inadmissible. What is essential is the preservation of the
integrity and the evidentiary value of the seized items, as the
same would be utilized in the determination of the guilt or
innocence of the accused. In the instant case, there was
substantial compliance with the law and the integrity of the
drugs seized from appellant was preserved.

People v. Cruz, G.R. No. 185381, December 16, 2009

Appellant argues that the police officers failed to
photograph or mark the shabu immediately after the alleged
buy-bust operation in his presence, or his counsel, a
representative from the media, a representative from the
Department of Justice, or any elected public official. The
Court, however, finds that there was substantial compliance
with the law and the integrity of the drugs seized was
preserved. PO3 Arago seized and confiscated the dangerous
drugs, as well as the marked money, appellant was
immediately arrested; and in that spot where he was
arrested, PO3 Arago marked the sachets of shabu with the
initials of appellant. PO2 Aguinaldo also marked the two (2)
sachets he found in appellants person with appellants initials.
Appellant was then brought to the police station for
investigation.
Immediately thereafter, the plastic sachets
were forwarded to the PNP Crime Laboratory with a request
for examination to determine the presence of any prohibited
drug. As per Physical Science Report No. D-747-03, the
specimens
submitted
contained
methamphetamine
hydrochloride or shabu.

219

People v. Ventura, G.R.No. 184957, October 27, 2009

The purpose of the procedure outlined in the implementing
rules (Sec. 21 RA 91665) is centered on the preservation of
the integrity and evidentiary value of the seized items. All
evidence, including the markings on the plastic sachet
containing the shabu, prove that the substace tested by the
forensic chemist, whose laboratory tests were welldocumented, was the same as that taken from accusedappellant.
Moreover, the integrity of the evidence is
presumed to be preserved, unless there is a showing of bad
faith, ill will, or proof that the evidence has been tampered
with.

People v. Lazaro, G.R. No. 186418, October 16, 2009

Appellant raised the buy-bust teams alleged noncompliance with Section 21, Article II of Republic Act No.
9165 for the first time on appeal. In People v. Sta. Maria, the
Court held that the law excuses non-compliance under
justifiable grounds. However, whatever justifiable grounds
may excuse the police officers involved in the buy-bust
operation in this case from complying with Section 21 will
remain unknown, because appellant did not question during
trial the safekeeping of the items seized from him. Thorough
review of the records, however, reveals that the chain of
custody of the seized substance was not broken and that the
prosecution did not fail to identify properly the drugs seized in
this case.

People v. Resurreccion, G.R. No. 186380, October 12,

2009
Jurisprudence tells us that the failure to immediately mark
seized drugs will not automatically impair the integrity of
chain of custody. People v. Sanchez explains that RA 9165
does not specify a time frame for immediate marking, or
where said marking should be done. To be able to create a
first link in the chain of custody, then, what is required is that
the marking be made in the presence of the accused and upon
immediate confiscation.
Immediate confiscation has no
exact definition. Thus, in People v. Gum-Oyen, testimony that
included the marking of the seized items at the police station
220

and in the presence of the accused was sufficient in showing

compliance with the rules on chain of custody. Marking upon
immediate confiscation contemplates even marking at the
nearest police station or office of the apprehending team.
-

People v. Teodoro, G.R. No. 185164, June 22, 2009

The chain of custody of the seized prohibited drugs was
shown not to have been broken. After the seizure of the
drugs from appellants possession, PO1 Climacosa and PO1
Antipasado marked the two (2) plastic sachets. The plastic
sachet that was sold to PO1 Climacosa was marked MC, while
the plastic sachet that was recovered by PO1 Antipasado was
marked MC-1.
These plastic sachets containing a white
crystalline substance were immediately forwarded to the PNP
Crime Laboratory in EPD for examination to determine the
presence of dangerous drugs. After a qualitative examination
conducted on the specimens, PSI Cejes concluded that the
white
crystalline
substance
was
positive
for
methylamphetamine hydrochloride (shabu), a dangerous
drug. There can be no doubt that the drugs seized from
appellant were the same ones examined in the crime
laboratory. Plainly, the prosecution established the crucial link
in the chain of custody of the seized shabu from the time they
were first discovered until they were brought for examination.
Jurisprudence teems with pronouncements that noncompliance with Section 21 will not render an accuseds arrest
illegal or the items seized or confiscated from him
inadmissible. Aside from the presumption that the police
operatives regularly performed their duties, they gave
consistent and straightforward narrations of what transpired
on May 28, 2004 that they apprehended the appellant in a
buy-bust operation, and that upon being frisked, appellant
was also found to be in possession of another sachet
containing a white crystalline substance later on found to be
methamphetamine hydrochloride, more popularly known as
shabu.

People v. Gum-Oyen, G.R. No. 182231, April 16, 2009

221

The prosecutions evidence sufficiently established the

unbroken chain of custody of the seized drugs beginning from
the entrapment team, to the investigating officer, to the
forensic chemist whose laboratory tests were welldocumented, up to the time there were offered in evidence.
The chain-of-custody rule requires that the admission of an
exhibit be preceded by evidence sufficient to support a finding
that the matter in question is what the proponent claims it to
be. The arresting officers also strictly complied with the
guidelines prescribed by law regarding the custody and
control of the seized drugs._There was testimony regarding
the marking of the seized items at the police station and in
the presence of appellant. Likewise there was mention that
an elected official was present during the inventory.
In
addition, it appears on record that the team photographed the
contraband in accordance with law._Absent any indication that
the police officers were ill-motivated in testifying against
appellant, full credence should be given to their testimonies.
In sum, contrary to appellants lone argument, the
prosecution established the corpus delicti with moral certainty.
Finally, it bears underscoring that appellant himself admitted
that he was carrying marijuana at the time of his arrest and
even though he knew it was against the law to so possess it in
any amount.
-

People v. Llamado, G.R. No. 185278, March 13, 2009

The failure on the part of the police officers to take
photographs and make an inventory of the drugs seized from
the appellant was not fatal because the prosecution was able
to preserve the integrity and evidentiary value of the said
illegal drugs. PO2 Brubio was able to put the necessary
markings on the sachet of shabu bought from appellant, for
identification purposes, immediately after the consummation
of the drug sale. He personally delivered the same specimen
to the PNP Crime Laboratory for chemical analysis on the
same day the entrapment was conducted. Lastly, PO2 Brubio
was able to identify the said markings in court.

People v. Macatingag, G.R. No. 181037, January 19,

2009

222

The seized sachet of shabu was immediately marked for

proper identification and forwarded to the Crime Laboratory
for examination.
The Chemistry Report stated that the
specimen submitted by the apprehending officers indeed bore
the marking Exh A MAG 171200-01-14 and that the same
gave positive result to the presence of Methamphetamine
Hydrochloride. Forensic Chemical Officer Tria confirmed that
she examined the specimen submitted by the PDEA and that
she was the one who prepared the Chemistry Report No. D54-04. It is thus evident that the identity of the corpus delicti
has been properly preserved and established by the
prosecution.
The integrity of the evidence is presumed to be preserved
unless there is a showing of bad faith, ill will, or proof that the
evidence has been tampered with. Appellant in this case has
the burden to show that the evidence was tampered or
meddled with to overcome a presumption of regularity in the
handling of exhibits by public officers and a presumption that
public officers properly discharge their duties._Appellant failed
to discharge such burden.
This Court has held that non-compliance with Section 21,
Article II of R.A. No. 9165 will not render an accuseds arrest
illegal or the items seized/confiscated from him inadmissible.
What is of utmost importance is the preservation of the
integrity and the evidentiary value of the seized items, as the
same would be utilized in the determination of the guilt or
innocence of the accused.
-

People v. Del Monte, G.R. No. 179940, April 23, 2008

Non-compliance with Section 21 will not render an
accuseds arrest illegal or the items seized/confiscated from
him inadmissible.
What is of utmost importance is the
preservation of the integrity and the evidentiary value of the
seized items as the same would be utilized in the
determination of the guilt or innocence of the accused. In the
case at bar, appellant never questioned the custody and
disposition of the drug that was taken from him. In fact, he
stipulated that the drug subject matter of this case was
forwarded to PNP Regional Crime Laboratory Office 3, Malolos,
Bulacan for laboratory examination which examination gave
positive result for methamphetamine hydrochloride, a
223

dangerous drug. Thus, the integrity and the evidentiary value

of the drug seized from appellant not to have been
compromised. Similarly, non-compliance with Section 21 of
said law, particularly the making of the inventory and the
photographing of the drugs confiscated and/or seized, will not
render the drugs inadmissible in evidence. Under Section 3 of
Rule 128 of the Rules of Court, evidence is admissible when it
is relevant to the issue and is not excluded by the law or
these rules. For evidence to be inadmissible, there should be
a law or rule which forbids its reception. Nothing in the law,
however, will bring about the non-admissibility of the
confiscated and/or seized drugs due to non-compliance with
Section 21 of Republic Act No. 9165. The issue therefore, if
there is non-compliance with said section, is not of
admissibility, but of weight evidentiary merit or probative
value to be given the evidence. The weight to be given by
the courts on said evidence depends on the circumstances
obtaining in each case.

224