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RA 9165: UNLAWFUL ACTS AND PENALTIES

Section 4. IMPORTATION OF DANGEROUS DRUGS and/or CONTROLLED PRECURSORS and ESSENTIAL


CHEMICALS

Offenders and their penalties:


Importer = Life to Death + P500k-P10M)
Importer using Diplomatic Passport (Death +P10M)
Financier, Organizer, Manager of Importation (death + P10M)
Protector/Coddler (12years 1 day to 20 years + 100k to 500k)

Section 5. SALE, TRADING, ADMINISTRATION, DISPENSATION, DELIVERY, DISTRIBUTION &


TRANSPORTATION of Dangerous Drugs

Penalty: Life to Death + P500k to P10M

Note: Maximum penalty is imposed on:


>committed within 100 m from a school
> Use of minors or mentally incapacitated persons as runners, couriers and messengers or in any other
capacity
>If the victim is a minor or mentally incapacitated
>Dangerous drug is the proximate cause of death of victim

Section 6. MAINTENANCE OF A DEN, DIVE OR RESORT

Penalty:
Maintenance- Life to Death + P500k to P10M fine
Caters to minor clients = Death +P10M fine
Financier = death + P10M fine
Protector/Coddler = 12 years 1 day- 20 years + p100k to P500k fine
Client dies = Death + P1M to P15M fine

Note: The den/dive/resort shall be confiscated in favor of government

Section 7. Employees and Visitors of a Den, Dive or Resort

1. Any employees of a den, dive or resort who IS AWARE of the NATURE OF THE PLACE as such; AND
2. Any person who, not being included in the provisions of Section 8, is AWARE OF THE NATURE of the
place as such AND KNOWINGLY VISIT the same.

Penalty: Imprisonment: 12 years 1 day to 20 years + fine: P100k-P500k

Section 8. MANUFACTURE of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.

Penalty for manufacture of dangerous drugs: Life Imprisonment to Death + 500k to 10M fine

Penalty for the manufacture of Controlled precursors and Essential Chemicals : 12 years 1 day to 20
years + P100k to P500k fine

Note: the presence of any controlled precursor and essential chemical or laboratory equipment in the
CLANDESTINE laboratory is a PRIMA FACIE proof of manufacture of any dangerous drugs.

Aggravating circumstances are:


Any phase of the manufacturing process was conducted in the presence or with the help of minor/s
Any phase or manufacturing process was established or undertaken within 100 meters of a residential
business, church or school premises;
Any clandestine laboratory was secured or protected with booby traps
Any clandestine laboratory was concealed with legitimate business operations ; or
Any employment of a practitioner, chemical engineer, public official or foreigner

Section. 11 POSSESSION of Dangerous Drugs

Elements:

Person is in possession which is identified to be a prohibited drug


Such possession is not authorized by law
Person freely and consciously possessed the said prohibited drug

Penalty depends on the quantity of the drugs possessed

Section 12. POSSESSION OF EQUIPMENT, INSTRUMENTS, APPARATUS and OTHER PARAPHERNALIA for
Dangerous Drugs
Penalty: Imprisonment of 6 months and 1 day to 4 years and a fine of P10k to P50k.

Note: The possession of such shall be prima facie evidence that the possessor has smoked, consumed,
administered, to himself/herself, injected, ingested or used a dangerous drug and shall be presumed to
have violated Section 15 of RA 9165

Section 13. POSSESSION of Dangerous Drugs Drugs during parties, social gatherings or meetings.

Any person found possessing any dangerous drug during a party, or at a social gathering or meeting, or
in the proximate company of at least two (2) persons, shall suffer the MAXIMUM penalties provided for
in Section 11 of RA 9165, regardless of the quantity and purity of the dangerous drugs.

Section 14. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous
Drugs During Parties, Social Gatherings or Meetings.

Note: Section 13 and 14 are the most applicable offense for pot session offenders sharing SAME
quantities of drugs and pieces of paraphernalias kaya lang NO BAIL RECOMMENDED xa.

Section 15. USE OF DANGEROUS DRUGS

A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after
confirmatory test, shall be imposed a penalty of a MINIMUM of 6 months REHABILITATION in a
government center for the FIRST OFFENSE.

If apprehended using any dangerous drug for the SECOND TIME, imprisonment of 6 years and 1 day to
12 years + fine of 50k to 200k

Note: twist in the filing of the case when the offender is found positive for the use of drugs
For Section 11- Section 15 is an aggravating circumstance
If no Section 11 but only Section 12- add mo sa filing ang Section 15.

Section 16. CULTIVATION or CULTURE OF PLANTS CLASSIFIED AS DANGEROUS DRUGS or ARE SOURCES
THEREOF
Life Imprisonment to Death plus Fine of 500k to P10M

Section 17. Maintenance and Keeping of Original Records of Transactions n Dangerous Drugs and/or
Controlled Precursor and Essential Chemicals

Section 18. Unnecessary Prescription of Dangerous Drugs


Section 19. Unlawful Prescription of Dangerous Drugs
Section 37. Issuance of False or Fraudulent Drug Test Results
Section 26 ATTEMPT OR CONSPIRACY. Any attempt or conspiracy to commit the following unlawful acts
shall be penalized by the same penalty prescribed for the commission of the same.

a) Importation;
b) Sale, trading, administration, dispensation, delivery, distribution and transportation;
c) Maintenance of a den, dive or resort where any dangerous drug 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.

Section 27 Public Officer or Employee is criminally liable for Misappropriation, Misapplication or Failure
to Account for the Confiscated, Seized and/or Surrendered Dangerous 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 Act Committed

Section 29. Criminal Liability for Planting of Evidence.


Any person who is found guilty of planting of dangerous drug and/or controlled precursor and essential
chemical, regardless of quantity and purity, shall suffer the penalty of DEATH

Section 91. Responsibility and Liability of Law Enforcement Agencies and other Government Officials and
Employees in testifying as Prosecution Witnesses in Dangerous Drugs Cases

who, AFTER DUE NOTICE, fails or refuses intentionally or negligently, to appear as a witness for the
prosecution in any proceedings, involving violations of this Act, without any valid reason
Penalty: Imprisonment of 12 years and 1 day to 20 years plus fine of 500k in addition to the
administrative liability he/she may be meted out by his/her immediate superior and/or appropriate
body.

Section 91. Responsibility and Liability of Law Enforcement Agencies..


Note the IMMEDIATE SUPERIOR of the member of the law enforcement agency or any other
government employee mentioned in the preceding paragraph, 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

Penalty: Imprisonment of 2 onths and 1 day to 6 years plus 10k to P50k fine in addition, perpetual
absolute disqualification from public office

The member of the law enforcement agency.. shall not be transferred or re-assigned to any other
government office located in another territorial jurisdiction during the pendency of the case. However,
the concerned member of the law enforcement agency or government employee may be transferred or
re-assigned for compelling reasons.

The Immediate superior shall notify the court where the case is pending of the order to transfer or re-
assign, within 24 hours from its approval. Should the immediate superior fail to notify the court of such
order to transfer or re-assign: Imprisonment of 2 months and 1 day to 6 years plus fine of P10k to P50k
in addition, perpetual absolute disqualification from public office

Section 92. DELAY AND BUNGLING in PROSECUTION OF DRUG CASES

Any government officer or 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; Imprisonment of 12 years
and 1 day to 20 years
RA 9165

Buy-bust Operation (Sec 5)


...

We therefore stress that the "objective" test in buy-bust operations demands that the details of the
purported transaction must be clearly and adequately shown. This must start from 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 drug subject of the sale.
The manner by which the initial contact was made, whether or not through an informant, the offer to
purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether
to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that
law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not
at all cost. At the same time, however, examining the conduct of the police should not disable courts
into ignoring the accuseds predisposition to commit the crime. If there is overwhelming evidence of
habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts
should look at all factors to determine the predisposition of an accused to commit an offense in so far as
they are relevant to determine the validity of the defense of inducement. (People vs De Guzman, G.R.
No. 151205)

Elements (Sec 5)

The elements necessary for the prosecution of illegal sale of drugs are (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.
What is material to the 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 evidence of corpus delicti. (People
vs Del Monte, G.R. No. 179940)

Elements (Sec 11)

The elements necessary for the prosecution of illegal possession of dangerous drugs 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.[19] Elucidating on the nature of this offense, the Court in People v. Tira wrote: x x x This crime
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. (People vs Gutierrez,
G.R. No. 177777)

Actual vs. Constructive Possession

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 exits 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.
(People vs Huang Zhen Hua, G.R. No. 139301)
Intent to possess

Thus, conviction need not be predicated upon exclusive possession, and a showing of non-exclusive
possession would not exonerate the accused. Such fact of possession may be proved by direct or
circumstantial evidence and any reasonable inference drawn therefrom. However, the prosecution must
prove that the accused had knowledge of the existence and presence of the drug in the place under his
control and dominion and the character of the drug. Since knowledge by the accused of the existence
and character of the drugs in the place where he exercises dominion and control is an internal act, the
same may be presumed from the fact that the dangerous drug is in the house or place over which the
accused has control or dominion, or within such premises in the absence of any satisfactory explanation.
(People vs Huang Zhen Hua, G.R. No. 139301)

Presumption of intent to possess

In the case at bar, appellant was caught in actual possession of a prohibited drug which he could not
show was duly authorized by law. Having been caught in flagrante delicto, there is a prima facie
evidence of animus possidendi on appellants part. As held by this Court in U.S. v. Bandoc, the finding of
a dangerous drug in the house or within the premises of the house of the accused is prima facie
evidence of knowledge or animus possidendi and is enough to convict in the absence of a satisfactory
explanation. (People vs Danila Cruz, G.R. No 185381)

Bondad vs. People (Sec 21)

IN FINE, as the failure to comply with the aforesaid requirements of the law compromised the identity of
the items seized, which is the corpus delicti of each of the crimes charged against appellant, his acquittal
is in order. (Bondad vs People, G.R. No 173804)

Preservation of Integrity of Seized Items

It is very clear from the language of the law that there are exceptions to the requirements. Therefore,
contrary to appellants assertions, Sec. 21 need not be followed with pedantic rigor. It has been settled
that non-compliance with Sec. 21 does not render an accuseds arrest illegal or the items
seized/confiscated from the accused 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." (Danilo Cruz case)
* Follow Sec 21 to preserve the integrity of the items

Chain of Custody

As held by the Court in Malillin v. People, the testimonies of all persons who handled the specimen are
important to establish the chain of custody. Thus, the prosecution offered the testimony of PO3 Arago,
the police officer who first handled the dangerous drug. The testimony of P/SInsp. Fermindoza, who
conducted the examination on the dangerous drug, was, however, dispensed with after the public
prosecutor and the defense counsel stipulated that the specimens submitted tested positive for
methamphetamine hydrochloride and that the said specimens were regularly examined by the said
witness. (Danilo Cruz case)

People vs Marcelino

Here, the chain of custody was established through the following links: (1) SPO1 Dela Cruz marked the
seized sachet with "MDC-1" for the sachet that was the subject of the buy-bust, and "MDC-2" for the
sachet found on accused-appellants person; (2) a request for laboratory examination of the seized
items "MDC-1" and "MDC-2" was signed by Police Senior Inspector Arthur Felix Asis; (3) the request and
the marked items seized were received by the Bulacan Provincial Crime Laboratory; (4) Chemistry
Report No. D-628-02 confirmed that the marked items seized from accused-appellant were shabu; and
(5) the marked items were offered in evidence as Exhibits "C-1" and "C-2." (People vs Marcelino, G.R. No
189278)

SJS vs Dangerous Drug Board & PDEA

SEC. 36. Authorized Drug Testing.Authorized drug testing shall be done by any government forensic
laboratories or by any of the drug testing 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

(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. (SJS vs Dangerous Drug Board & PDEA,
G.R. No 157870)

*SJS questioned the constitutionality C-G of Sec 36

Students Constitutional

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.

The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens
the well-being of the people, particularly the youth and school children who usually end up as victims.
Accordingly, and until a more effective method is conceptualized and put in motion, a random drug
testing of students in secondary and tertiary schools is not only acceptable but may even be necessary if
the safety and interest of the student population, doubtless a legitimate concern of the
government, are to be promoted and protected. To borrow from Vernonia, [d]eterring drug use by
our Nations schoolchildren is as important as enhancing efficient enforcement of the Nations laws
against the importation of drugs; the necessity for the State to act is magnified by the fact that the
effects of a drug-infested school are visited not just upon the users, but upon the entire student body
and faculty. Needless to stress, the random testing scheme provided under the law argues against the
idea that the testing aims to incriminate unsuspecting individual students. (SJS case)

Employees in the Private Sector Constitutional

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the
employees, the compelling state concern likely to be met by the search, and the well-defined limits set
forth in the law to properly guide authorities in the conduct of the random testing, we hold that the
challenged drug test requirement is, under the limited context of the case, reasonable and, ergo,
constitutional. (SJS case)

Government official & Employees Constitutional

Like their counterparts in the private sector, government officials and employees also labor under
reasonable supervision and restrictions imposed by the Civil Service law and other laws on public
officers, all enacted to promote a high standard of ethics in the public service. And if RA 9165 passes the
norm of reasonableness for private employees, the more reason that it should pass the test for civil
servants, who, by constitutional command, are required to be accountable at all times to the people and
to serve them with utmost responsibility and efficiency. (SJS case)

Persons Charged (6 years & 1 day) Unconstitutional

To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test as a
tool for criminal prosecution, contrary to the stated objectives of RA 9165. 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 persons are veritably forced to incriminate themselves. (SJS case)

Candidates for Public Office amendment to the Constitution (unconstitutional)

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 the 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 drug-testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does
not expressly state that non-compliance with the drug test imposition is a disqualifying factor or would
work to nullify a certificate of candidacy. This argument may be accorded plausibility if the drug test
requirement is optional. But the particular section of the law, without exception, made drug-testing on
those covered mandatory, necessarily suggesting that the obstinate ones shall have to suffer the
adverse consequences for not adhering to the statutory command. And since the provision deals with
candidates for public office, it stands to reason that the adverse consequence adverted to can only refer
to and revolve around the election and the assumption of public office of the candidates. Any other
construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure jargon without
meaning and effect whatsoever. (SJS case)