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Crimes Relative to Opium and Other Prohibited

Drugs
(The provisions of Article 190 to 194 have been repealed. First there was R.A. 6425 known as the
Dangerous Drugs Law of l972 as amended by R.A. 7659. This law has in turn been replaced by R.A.
9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002. Some salient provisions are
summarized hereunder).
A. Change in the classification of dangerous substances. The old classification between Prohibited and
Regulated Drugs have been replaced by classifying dangerous substances into (i) Dangerous Drugs (DD)
and (ii) Controlled Precursors and Essential Chemicals (CP/EC)
DD and CP/EC are not defined but refer to those substances which are enumerated in the list of
schedules prepared and adopted by International Conventions.

B. Factors Affecting Criminal Liability:


1.The kind of dangerous substance involved: the penalty is higher if
what are involved are DD.
2. The Act performed by the accused such as:
a. Importation
b. Sale, trading, dispensation, delivery, distribution and transportation. (Note: The quantity of the
substance involved is immaterial)
c. Maintenance of a den, dive or resort Being an employee or visitor of a den, dive or resort
d. Manufacture of a DD or CP/EC or drug paraphernalia
e. Illegal chemical diversion
f. Possession of a DD
(i). The possession of different substances give rise to separate charges of possession even if the drugs
were seized in the same place and occasion ( PP. vs. Empleo, 503 SCRA 464; PP. vs. Tira 430 SCRA
134) . Thus one may be charged for possession of Marijuana separate from possession of shabu
(methamphetamine hydrocloride)
(ii). One may be charged for sale of shabu and a separate charge of possession of another gram of shabu
which was not the subject of the sale
(iii). One charged for sale or delivery may be convicted of possession if the sale or possession was not
proven

(iv). In this charge of possession, the quantity of the substance determines the penalty to be imposed
(v). Possession may be actual or constructive. Actual possession is when the drug is in the immediate
physical possession or control of the accused constructive possession exists when the drug is under
the dominion or control of the accused or when he has a right to exercise dominion or control over the
place where it is found ( PP vs. Tira,430 SCRA 134)
Thus a person may be convicted for possession of drugs found inside his bedroom even if at the time of
the seizure, he was physically absent there from ( PP vs. Torres, Sept. 12, 2006)
f. Possession of DD or drug paraphernalia during parties, social gatherings or meetings or in the proximity
of at least two persons ( these are new provisions)
d. Use of DD provided the accused is not charged for possession
e. Cultivation or culture of plants classified as DD or sources thereof. This need not be in a plantation.
One plant of marijuana in a flower pot is included
f. Offenses by physicians and drug stores: (i) failure to maintain and keep records of transactions of any
DD or CP/EC (ii) Unnecessary prescription (iii) Unlawful prescription
g. Two new acts are included:
(i). Acting as a Financier: a person who pays for, raises, or supplies money for, or underwrites any of the
illegal activities involving dangerous substances
(ii). Acting as a Protector or coddler: a person who knowingly and willfully consents to the unlawful acts
provided for in the law and who uses his influence, power or position in shielding, harboring, screening or
facilitating the escape of any person whom he knows or has grounds to believe has violated the
provisions of this Act in order to prevent the arrest, prosecution and conviction of the violator
j. Attempt or conspiracy. Note that the law does not include possession as being the subject of an attempt
or conspiracy ( Is this omission intentional or by oversight? )

3. The Quantity of the dangerous substance if the act of that of


possession
4. The presence of special aggravating circumstances.
a). These vary according to the act of the accused. Thus in the act of importing: that the accused is a
diplomat or a financier. In cases of sale, delivery, administration or transporting: that it took place within a
radius of 100 meters form a school; the use of a minor or a mentally incapacitated person; or that the
victim is a minor or a mentally incapacitate person; or that the DD is the proximate cause of the death; or
that the suspect is a financier
b). The application of these circumstances is doubtful considering that the penalties provided for by the

Act do not follow the nomenclature and scheme of the penalties under the Revised Penal Code and they
do not have periods
C. New Acts punished: The law seeks to address certain abuses by law enforcers as well as causes of
unsuccessful prosecution or dismissal of drug cases filed in court.
1.Creation of a new qualifying aggravating circumstance applicable to offenses under the Revised Penal
Code consisting of a POSITIVE FINDING FOR THE USE OF DANGEROUS DRUGS. This must be
corroborated by a confirmatory drug test
a). Under the old law what constituted an aggravating circumstance was that the accused committed a
crime while under the influence of drug. Under the new law, the accused need not be high on drugs
during the time of committing of a crime so long as the test showed he is a user of drugs
b). The application of the new qualifying aggravating circumstance poses a problem to felonies which do
not have qualified forms such as parricide, threats, physical injuries, robbery. ( In such a case it is
suggested the circumstance must be appreciated as a special aggravating to give meaning to the intent of
the congress to punish more severely the users who commits crimes)
2. Defining and Penalizing the offense of Planting of Evidence i..e planting of any dangerous substances
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
a). If what is planted is not a dangerous substances the crime is that of Incriminating an Innocent
Person/Incriminatory Machination under the Revised Penal Code.
b). The penalty is death
3. Penalizing any public officer who misappropriates, misapplies or fails to account for the DD/CP/EC,
paraphernalia, proceeds or properties obtained form unlawful acts. ( Note: Consider this as Malversation
or Infidelity of Dangerous Drugs, Drug paraphernalia and Drug Proceeds)
4. Penalizes the following acts of law enforcers:
a). Failure or refusal after due notice, to appear as witnesses for the prosecution
b). Failure of the immediate superior to exert reasonable efforts to present the witness in court
c). Failure of the immediate superior to notify the court of the transfer or re-assignment of a witness during
the pendency of the case to another territorial jurisdiction. Note that the transfer of re-assignment to the
witnesses to another territorial jurisdiction must only be for compelling reason and provided the court was
notified 24 hours in advance.
5. Defines and Penalizes the act of Delay and Bungling in the Prosecution of Drug Cases i.e. the
prosecution causes the unsuccessful prosecution or the dismissal through patent laxity, inexcusable
neglect or unreasonable delay. There must first be an Order of dismissal or Judgment of acquittal, based

on the fault of the prosecution.


6. In case of conviction:
a). the convict suffers the accessory penalty of disqualification to exercise civil rights and political rights
and that rights are suspended during the pendency of an appeal from such a conviction.
b). After conviction by the RTC: there shall be hearing for the confiscation and forfeiture of unexplained
wealth of the accused. In case the article declared forfeited is a vehicle, the same shall be auctioned not
later than five days from the order of confiscation or forfeiture
7. Prohibition against plea bargaining and disqualification from probation for those convicted of drug
trafficking
8. Provides as a ground for removal from office of an elective official; that of having benefited from the
proceeds of drug trafficking or receipt of any financial or material contribution or donation from persons
found guilty of drug trafficking.
D. Provisions Against Act affecting the Integrity of the evidence or their possible appropriation by agents:
1. Conduct of a Physical Inventory and Photographing of the Evidence
a.

Immediately upon the arrest, seizure or confiscation

b. In the presence of (i) the accused or person form whom the articles were taken or his representative
(ii) a representative form the DOJ (iii) representative from the Media and (iv) an elected official. These
persons must also sign the written inventory
2. Submission of the article within 24 hours to the Crime Laboratory for Quantitative ( how many kilos or
grams) and qualitative ( what kind of substance was involved) examination
3. Requirement that the results of the crime laboratory examination must be under oath
4. Upon the filing of the Information in Court:
a. Conduct of an ocular inspection or examination of the evidence by the court within 72 hours. This may
be in the place were the evidence are kept if the same cannot be presented in court, or the evidence are
actually brought and presented in court.
b. Destruction of the articles within 24 hours following the inspection but representative samples are
taken and preserved
5. Destruction of the representative samples after conviction, forfeiture and confiscation of other proceeds
of the crime and
E. Provisions intended to benefit the drug dependent- the following are applicable only if the charge is for

the use of DD/CP/EC :


1. Community service in lieu of imprisonment
2. Exemption from Criminal Liability for first time offenders who underwent treatment and rehabilitation in
a Drug Rehabilitation Center under the supervision of the Dangerous Drugs Board and were discharged
thereafter
3. Suspension of sentence of a Minor First Offender
a). A minor is one who is over 15 at the time of the commission of the offense but below 18 at the time of
sentencing
b). The suspension is discretionary upon the court. Contra the Family Court Law ( RA 8369) which
provides that the suspension is mandatory)
c). The minor is placed under the supervision of the Dangerous Drugs Board and is for a period ranging
from 6 to 18 months
d). Upon favorable recommendation by the Board the court shall discharge the accused and dismiss all
the proceedings
e). All records shall be expunged and the minor shall not be criminal liable for perjury for concealment or
misrepresentation of refusal to acknowledge or recite any fact concerning his case.
F. Provisions to expedite drug cases:
1. The Preliminary Investigation shall be terminated within 30 days from filing and the Information hall be
filed within 24 hours from the termination of the investigation
2. Trial shall be terminated not later than 60 days from ate of filing of the Information
3. The decisions shall be rendered within 15 days from submission for decision
G. Miscellaneous Provisions:
1. Requirement of a Mandatory Drug Test in the following:
a). Application and renewal of drivers license
b). Application for firearms license or permit to carry
c). Annually for Officers and members of the AFP, PNP and other law enforcement agencies
d). For all persons charged before the Prosecutors Office for an offenses punishable by imprisonment of

not less than 6 years and one day


e). For all candidates for public office whether appointive or elective, national or local
2. Requirement of a Random Drug test
a). For high school and college students with parental consent and subject to the rules and regulations of
the student handbook
b). For officer and employees of public and private offices subject to the companys work rules and
regulations
3. Strengthening and Professionalization of the Fight against Drug Menace:
a). Creating of the Philippine Drug Enforcement Agency ( PDEA) as the implementing arm of the
Dangerous Drugs Board
b). the NARCOTICS group fo the other law enforcement agencies are abolished
c. Establishment of a PDEA ACADEMY which shall be responsible for rte recruitment and training of
PDEA agents and personnel and whose graduates shall comprise the operating units of the PDEA
H. Principles:
1. Drug cases are where the principles of Instigation and Entrapment are most often applied
2. Buy-bust operations are recognized as one of the most effective means of arresting criminals in
flagranti. Where the arrest is due to a buy-bust the presentation of the buy-money is not essential, and as
a general rule, the identification and presentation of the civilian informer is considered privileged
3. If the accused is a CICL and the penalty is Life Imprisonment, said penalty shall be understood to be
Reclusion Perpetua thereby the minor is still entitled to all the beneficial effects arising from his minority,
such as the reduction of the penalty by degrees