MY LECTURE NOTES ON REPUBLIC ACT NO.

9165
BY:
Executive Judge PABLO CABILLAN FORMARAN III

What is Republic Act No. 9165?

This Act is known as the “Comprehensive Dangerous Drugs Act of 2002,” which was passed into law on
June 7, 2002, overhauls the 30-year old Dangerous Drugs Act of 1972 (R.A. 6425). The new law increases the
penalties for drug related offenses while placing more emphasis on the rebuilding of lives through rehabilitation
and treatment.1

When did it take effect?

This law was enacted on June 7, 2002, and was published in two newspapers of general circulation
(namely, the Manila Times and Manila Standard) on June 19, 2002 and in the Official Gazette (Vol. 98 No. 32 page
4325) on August 12, 2002. It became effective fifteen (15) days from their publication.2

What are the acts punished under the law?

The law penalizes the following unlawful acts:

1. Importation of Dangerous Drugs and/ or Controlled Precursors and Essential Chemicals – the penalty
is life imprisonment to death and a fine ranging from P500 Thousand – P10 Million for dangerous drugs; for
controlled precursors and essential chemicals, the penalty is 12 years and 1 day to 20 years and a fine
ranging from P100 Thousand to P500 Thousand.
2. Sale, Trading, Administration, Dispensation, Delivery, Destribution and Transportation of Dangerous
Drugs and/or Controlled Precursors and Essential Chemicals – the penalty is life imprisonment to death
and a fine ranging from P500 Thousand – P10 Million for dangerous drugs; for controlled precursors and
essential chemicals, the penalty is 12 years and 1 day to 20 years and a fine ranging from P100 Thousand to
P500 Thousand.
3. Maintenance of Den, Dive or Resort – the penalty is life imprisonment to death and a fine ranging from
P500 Thousand – P10 Million if dangerous drug is used or sold in any form; if controlled precursor and
essential chemical is used or sold, the penalty is 12 years and 1 day to 20 years and a fine ranging from
P100 Thousand to P500 Thousand.
4. Employees and Visitors of a Den, Dive or Resort – the penalty is 12 years and 1 day to 20 years and a
fine ranging from P100 Thousand to P500 Thousand.
5. Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals – the penalty
is life imprisonment to death and a fine ranging from P500 Thousand – P10 Million if dangerous drug is
manufactured; if controlled precursor and essential chemical are manufactured, the penalty is 12 years and 1
day to 20 years and a fine ranging from P100 Thousand to P500 Thousand.
6. Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals – the penalty is 12 years
and 1 day to 20 years and a fine ranging from P100 Thousand to P500 Thousand.
7. Manufacture or Delivery of Equipment, Instrument, Apparatus, and other Paraphernalia for
Dangerous Drugs and/or Controlled Precursors and Essential Chemicals – the penalty is 12 years and
1 day to 20 years and a fine ranging from P100 Thousand to P500 Thousand.
8. Possession of Dangerous Drugs – the penalty is life imprisonment to death and a fine ranging from P500
Thousand – P10 Million ( Note: Depending of the quantity of any dangerous drugs enumerated).
9. Possession of Equipment, Instruments, Apparatus and Other Paraphernalia for Dangerous Drugs –
the penalty is from 6 months and 1 day to 4 years and a fine ranging from P10 Thousand – P50 Thousand.
10. Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings – the penalty is life
imprisonment to death and a fine ranging from P500 Thousand – P10 Million, regardless of the quantity and
purity of such dangerous drugs.
11. Possession of Equipment, Instruments, Apparatus and Other Paraphernalia for Dangerous Drugs
During Parties, Social Gatherings or Meetings – the maximum penalty is 6 months and 1 day to 4 years
and a fine ranging from P10 Thousand – P50 Thousand.
12. Use of Dangerous Drugs – the penalty is 6 months in rehabilitation center for the first offense; for the
second offense – 6 years and 1 day to 12 years and a fine ranging from P50 Thousand – P200 Thousand.
13. Cultivation or Culture of Plants Classified as Dangerous Drugs – the penalty is life imprisonment to
death and a fine ranging from P500 Thousand – P10 Million.
14. Failure to Maintain and Keep Original Records of Transactions on Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals – the penalty is 1 year and 1 day to 6 years and a fine
ranging from P10 Thousand to P50 Thousand.
15. Unnecessary Prescription of Dangerous Drugs - the penalty is 12 years and 1 day to 20 years and a fine
ranging from P100 Thousand to P500 Thousand.

1 A Primer on the Dangerous Drugs Act by Congressman Antonio V. Cuenco (Principal Sponsor of R.A.
No. 9165), p. 2.
2 Section 102, Republic Act 9165
My Lecture Notes on R.A No. 9165 Page 2

16. Unlawful Prescription of Dangerous Drugs – the penalty is life imprisonment to death and a fine ranging
from P500 Thousand to P10 Million.
17. Attempt3 or Conspiracy4 to commit importation of dangerous drug and/or controlled precursor and
essential chemicals, sale, trading, administration, distribution and transportation of any dangerous drug
and/or controlled precursor and essential chemicals, maintenance of den, dive or resort where any
dangerous is used in any form, manufacture of any dangerous drug and/or controlled precursor and
essential chemical, and cultivation or culture of plants which are sources of dangerous drugs – the
same penalty of the unlawful acts.
18. Criminal Liability of a Public Officer or Employee 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 - the penalty is life imprisonment to death and a fine ranging from P500 Thousand to P10
Million.
19. Planting of Evidence – the penalty is death.
20. Violation of any Regulation Issued by the Dangerous Drugs Board – the penalty is 6 months and 1 day
to 4 years and a fine ranging from P10 Thousand to P50 Thousand as well as administrative liability.
21. Issuance of False or Fraudulent Drug Test Results – the penalty is 6 years and 1 day to 12 years and a
fine ranging from P100 Thousand to P500 Thousand.
22. Violation of Confidentiality of Records – the penalty is 6 months and 1 day to 6 years and a fine ranging
from P1 Thousand – P6 Thousand.
23. Failure or Refusal to Testify in Proceedings Involving Offenses under this law – the penalty is 12
years and 1 day to 20 years and a fine of not less than P500 Thousand.
24. Delay and Bungling in the Prosecution of Drug Cases - the penalty is 12 years and 1 day to 20 years,
without prejudice to his/her prosecution under pertinent provisions of the Revised Penal Code.

Who is the User penalized under this law?

As can be deduced from the definition of use, a User is a person who engages in “any act of injecting,
intravenously or intramuscularly, of consuming, either by chewing, smoking, sniffing, eating, swallowing,
drinking or otherwise introducing into the physiological system of the body, any of the dangerous drugs.”5

SECTION 15. USE of Dangerous Drugs

Any person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a
confirmatory test6 and who is a first-time offender, shall be committed to a minimum of six (6) months of
rehabilitation in a government center, subject to Article VIII of the law. If apprehended using any dangerous
drug for the second time, he/she shall then suffer criminal liability of imprisonment from 6 years and 1 day to
12 years and a fine ranging from P50,000 to P200,000.

The person referred to herein is a natural person, because, obviously a juridical person cannot be
held liable of this offense.

Take note the second paragraph of Section 12, because it is very relevant in the prosecution of
Section 15. The provision reads:

“The possession of such equipment, instrument, apparatus and other paraphernalia fit
or intended for any of the purposes enumerated in the preceding paragraph 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 this
Act.”

However, where the person tested is also found to have in his/her possession such quantity of any
dangerous drug provided for under Section 11 of this law, the provisions therein on POSSESSION of
Dangerous Drugs shall apply. It is committed by any person, who, unless authorized by law, shall
possess any dangerous drug, regardless of the degree of purity thereof:

(1) Opium (10 grams or more)7

(2) Morphine (10 grams or more)
(3) Heroin (10 grams or more)
(4) Cocaine or cocaine hydrochloride (10 grams or more)
(5) Methamphetamine hydrochloride or “shabu” (50 grams or more)
(6) Marijuana resin or marijuana resin oil(10 grams or more)

3 There is an attempt when the offender commences the commission of a felony directly by overt acts, and does
not perform all the acts of execution which should produce the felony by reason of some cause or accident
other than his own spontaneous desistance – Art. 6, Revised Penal Code.
4 A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony
and decide to commit it – Art. 8, Revised Penal Code.
5 Section 3(kk), Ibid.
6 Section 3(f), ibid. “Confirmatory Test” is an analytical test using a device, tool or equipment with a
different chemical or physical principle that is more specific which will validate and confirm the result
of the screening test.
7 The penalty is life imprisonment to death and a fine ranging from P500 Thousand to P10 Million.
My Lecture Notes on R.A No. 9165 Page 3

(7) Marijuana (500 grams or more)

(8) Other dangerous drugs such as, but not limited to, methylenedioxymethamphetamine (MDMA)
or “ecstasy”, paramethozyamphetamine (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.
(10 grams or more)

When found to be positive for dangerous drugs use during drug testing by accredited
laboratories or centers, the following persons8 shall be subject to the provisions of Section 15 of this
law on Use of Dangerous Drugs:

(a) Applicants for driver’s license;

(b) Applicants for firearm’s license and for permit to carry firearms outside of residence;
(c) Students of secondary and tertiary schools, whether public or private, who underwent random
drug testing;
(d) Officers and employees of public and private offices, whether domestic or overseas, who
underwent random drug tests pursuant to the company’s work rules and regulations;
(e) Officers and members of the military, police and other law enforcement agencies who underwent
annual mandatory drug tests;
(f) All persons charged before the prosecutor’s office with a criminal offense having an imposable
penalty of imprisonment of not less than six (6) years and one (1) day who underwent
mandatory drug test; and
(g) All candidates for public office whether appointed or elected both in the national or local
government who underwent mandatory drug test.

It should be mentioned that in the consolidated cases of Social Justice Society (SJS), Atty. Manuel J.
Laserna, Jr. vs. Dangerous Drugs Board and the Philippine Drug Enforcement Agency and Aquilino Q. Pimentel,
Jr. vs. Commission on Elections,9 the Supreme Court En Banc declared as unconstitutional Section 36 (f) and (g)
or the provisions requiring mandatory drug test to all persons charged before the prosecutor’s office with a criminal
offense with an imposable penalty of imprisonment of not less than six (6) years and one (1) day and the required
mandatory drug test for all candidates for public office whether appointed or elected both in the national or local
government. But in the same case, the Supreme Court declared as constitutional paragraphs c and d of Section
36 of Republic Act No. 9165, which pertain to random drug testing of students of secondary and tertiary schools,
whether public or private, and the officers and employees of public and private offices, whether domestic or
overseas. This case is significant because persons charged before the prosecutor’s office with a criminal offense
with an imposable penalty of imprisonment of not less than six (6) years and one (1) day could no longer be
required to undergo a mandatory drug test. What was the reason proffered by the Supreme Court? First, let us
know the principal issues of the case, and they are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for
candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator
in addition to those laid down by the Constitution? and

(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these
paragraphs violate the right to privacy, the right against unreasonable searches and seizure, and the equal
protection clause? Or do they constitute undue delegation of legislative power?

Just to give you an idea with respect to the case of Senator Pimentel, his contention is this, “that Sec.
36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an additional qualification on candidates for
senator. He points out that, subject to the provisions on nuisance candidates, a candidate for senator needs only
to meet the qualifications laid down in Sec. 3, Art. VI of the Constitution, to wit: (1) citizenship, (2) voter
registration, (3) literacy, (4) age, and (5) residency. Beyond these stated qualification requirements, candidates for
senator need not possess any other qualification to run for senator and be voted upon and elected as member of
the Senate. The Congress cannot validly amend or otherwise modify these qualification standards, as it cannot
disregard, evade, or weaken the force of a constitutional mandate, or alter or enlarge the Constitution.” The
Supreme Court sustained the contention of Senator Pimentel and declared Section 36 (g) unconstitutional.

On the other hand, in upholding the constitutionality of the provision on random drug testing for students
of secondary and tertiary schools, the Supreme Court held:

“In sum, what can reasonably be deduced from the above two cases and applied to this
jurisdiction are: (1) schools and their administrators stand in loco parentis with respect to their
students; (2) minor students have contextually fewer rights than an adult, and are subject to the
custody and supervision of their parents, guardians, and schools; (3) schools, acting in loco
parentis, have a duty to safeguard the health and well-being of their students and may adopt
such measures as may reasonably be necessary to discharge such duty; and (4) schools have
the right to impose conditions on applicants for admission that are fair, just, and non-
discriminatory.

8 Section 36, ibid.

9 G.R. Nos. 157870, 158633, 161658, November 3, 2008.
My Lecture Notes on R.A No. 9165 Page 4

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.”

In upholding also the constitutionality of the provision on the random drug test for officers and employees
of public and private offices, the Supreme Court held:

The first factor to consider in the matter of reasonableness is the nature of the privacy
interest upon which the drug testing, which effects a search within the meaning of Sec. 2, Art. III
of the Constitution, intrudes. In this case, the office or workplace serves as the backdrop for the
analysis of the privacy expectation of the employees and the reasonableness of drug testing
requirement. The employees’ privacy interest in an office is to a large extent circumscribed by
the company’s work policies, the collective bargaining agreement, if any, entered into by
management and the bargaining unit, and the inherent right of the employer to maintain
discipline and efficiency in the workplace. Their privacy expectation in a regulated office
environment is, in fine, reduced; and a degree of impingement upon such privacy has been
upheld.

xxx

“xxx In the case of students, the testing shall be in accordance with the school rules as
contained in the student handbook and with notice to parents. On the part of officers/employees,
the testing shall take into account the company’s work rules. In either case, the random
procedure shall be observed, meaning that the persons to be subjected to drug test shall be
picked by chance or in an unplanned way. And in all cases, safeguards against misusing and
compromising the confidentiality of the test results are established.”

xxx

“To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the
country and thus protect the well-being of the citizens, especially the youth, from the deleterious
effects of dangerous drugs. The law intends to achieve this through the medium, among others,
of promoting and resolutely pursuing a national drug abuse policy in the workplace via a
mandatory random drug test. To the Court, the need for drug testing to at least minimize illegal
drug use is substantial enough to override the individual’s privacy interest under the premises.
The Court can consider that the illegal drug menace cuts across gender, age group, and social-
economic lines. And it may not be amiss to state that the sale, manufacture, or trafficking of
illegal drugs, with their ready market, would be an investor’s dream were it not for the illegal and
immoral components of any of such activities. The drug problem has hardly abated since the
martial law public execution of a notorious drug trafficker. The state can no longer assume a laid
back stance with respect to this modern-day scourge. Drug enforcement agencies perceive a
mandatory random drug test to be an effective way of preventing and deterring drug use among
employees in private offices, the threat of detection by random testing being higher than other
modes. The Court holds that the chosen method is a reasonable and enough means to lick the
problem.

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.

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.

And lastly, in declaring Section 36 (f) as unconstitutional, the Supreme Court held:

“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.
My Lecture Notes on R.A No. 9165 Page 5

We find the situation entirely different in the case of persons charged before the public
prosecutor’s office with criminal offenses punishable with six (6) years and one (1) day
imprisonment. The operative concepts in the mandatory drug testing are “ randomness” and
“suspicionless.” In the case of persons charged with a crime before the prosecutor’s office, a
mandatory drug testing can never be random or suspicionless. The ideas of randomness and
being suspicionless are antithetical to their being made defendants in a criminal complaint.
They are not randomly picked; neither are they beyond suspicion. When persons suspected of
committing a crime are charged, they are singled out and are impleaded against their will. The
persons thus charged, by the bare fact of being haled before the prosecutor’s 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 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.

With such pronouncement of the Supreme Court, does it mean that persons who are apprehended or
arrested for violation of Republic Act No. 9165 could no longer be subjected to drug test? The answer is no. This
has been clarified in the case of Jaime Dela Cruz vs. People10 wherein the Supreme Court speaking thru Chief
Justice Sereno held:

First, "[a] person apprehended or arrested" cannot literally mean any person apprehended or
arrested for any crime. The phrase must be read in context and understood in consonance with R.A.
9165. Section 15 comprehends persons arrested or apprehended for unlawful acts listed under
Article II of the law.

Hence, a drug test can be made upon persons who are apprehended or arrested for, among others,
the "importation," "sale, trading, administration, dispensation, delivery, distribution and
transportation", "manufacture" and "possession" of dangerous drugs and/or controlled precursors
and essential chemicals; possession thereof "during parties, social gatherings or meetings"; being
"employees and visitors of a den, dive or resort"; "maintenance of a den, dive or resort"; "illegal
chemical diversion of controlled precursors and essential chemicals" ; "manufacture or delivery" or
"possession" of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs
and/or controlled precursors and essential chemicals; possession of dangerous drugs "during
parties, social gatherings or meetings" ; "unnecessary" or "unlawful" prescription thereof; "cultivation
or culture of plants classified as dangerous drugs or are sources thereof"; and "maintenance and
keeping of original records of transactions on dangerous drugs and/or controlled precursors and
essential chemicals." To make the provision applicable to all persons arrested or apprehended for
any crime not listed under Article II is tantamount to unduly expanding its meaning. Note that
accused appellant here was arrested in the alleged act of extortion.

Who is a Pusher?

A Pusher is 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 such transactions, in violation of this Act.11 The unlawful act applicable to pusher is Section 5.

SECTION 5. SALE, TRADING, ADMINISTRATION, DISPENSATION, DELIVERY, DISTRIBUTION and

TRANSPORTATION of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.

This act is committed by any person, who, unless authorized by law, shall sell12, trade, administer13,
dispense14, deliver15, 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. It may also be violated by any person who, unless authorized by law, shall
so sell, trade, administer, dispense, deliver, give away to another, distribute , dispatch in transit or transport
any controlled precursor and essential chemical, or shall act as a broker in such transactions.

10 G.R. No. 200748, July 23, 2014.

11 Section 3(ff), Ibid.
12 Section 3 (ii), ibid. “Sell” refers to any act of giving away any dangerous drug and/or controlled
precursor and essential chemical whether for money or any other consideration.
13 Section 3 (a), ibid. “Administer” refers to any act of introducing any dangerous drug into the body
of any person, with or without his/her knowledge, by injection, inhalation, ingestion or other means,
or of committing any act of indispensable assistance to a person in administering a dangerous drug to
himself/herself unless administered by a duly licensed practitioner for purposes of medication.
14 Section 3 (m), ibid. “Dispense” refers to any act of giving away, selling or distributing medicine or
any dangerous drug with or without the use of prescription.
15 Section 3 (k) ibid. “Deliver” refers to any act of knowingly passing a dangerous drug to another,
personally or otherwise, and by any means, with or without consideration.
My Lecture Notes on R.A No. 9165 Page 6

Any person who acts as a “protector/coddler” of any violator of Section 5 shall also be punished.

What Circumstances Qualify the Imposable Penalty to its Maximum?

I. If the sale, trading16, administration, dispensation, deliver, distribution or transportation of any

dangerous drug and/or controlled precursor and essential chemical transpires within one
hundred (100) meters from the school17.
II. If the offender is a drug pusher who uses minors or mentally incapacitated individuals as
runners, couriers and messengers, or in any other capacity directly connected to the dangerous
drugs and/or controlled precursors and essential chemicals trade.
III. If the victim of the offense is a minor or a mentally incapacitated individual.
IV. If a dangerous drug and/or controlled precursor and essential chemical involved in any offense
under this Act is the proximate cause of death of a victim thereof.
V. If the offender organizes, manages or acts as a “financier” of any of the illegal activities
prescribed in Section 5 of the law.

In every prosecution for illegal sale of shabu under Section 5, Art. II of Republic Act No. 9165 or the
“Comprehensive Dangerous Drugs Act of 2002,” the following elements must be sufficiently proved: (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.18

Usually, Section 5 is enforced thru a buy-bust operation. In People vs. Tecson Lim, et al.,19 the Supreme
Court explained the concept of a buy-bust operation, to wit:

“Primarily, a buy-bust operation is a form of entrapment whereby ways and means are
resorted to for the purpose of trapping and capturing lawbreakers in the execution of their
criminal plan. Unless there is clear and convincing evidence that the members of the buy-bust
team were inspired by any improper motive or were not properly performing their duty, their
testimonies on the operation deserve full faith and credit. When the police officers involved in
the buy-bust operation have no motive to falsely testify against the accused, the courts shall
uphold the presumption that they have performed their duties regularly. The courts, nonetheless,
are advised to take caution in applying the presumption of regularity. It should not by itself
prevail over the presumption of innocence and the constitutionally protected rights of the
individual. Thus, this Court discussed in People v. Doria the "objective" test in buy-bust
operations to determine the credibility of the testimonies of the police officers involved in the
operation:

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 accused's 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.”

Corollary to this, it is important to know the distinction between instigation and entrapment. In the case
of People vs. Victorio Pagkalinawan20, the distinction of the two was explained in this wise:

“Instigation is the means by which the accused is lured into the commission of the offense
charged in order to prosecute him. On the other hand, entrapment is the employment of such
ways and means for the purpose of trapping or capturing a lawbreaker.

16 Section 3 (jj), ibid. “Trading” refers to transactions involving the illegal trafficking of dangerous
drugs and/or controlled precursors and essential chemicals using electronic devices such as, but not
limited to, text messages, e-mail, mobile or landlines, two-way radios, internet, instant messages, and
chat rooms or acting as a broker in any of such transactions whether for money or any other
consideration in violation of RA 9165.
17 Section 3 (gg), ibid. “School” refers to any educational institution, private or public, undertaking
educational operation for pupils/students pursuing certain studies at defined levels, receiving
instruction from teachers , usually located in a building or a group of buildings in a particular physical
or cyber site.
18 People vs. Bertha Presas y Tolentino, G.R. No. 182525, March 2, 2011.
19 G.R. No. 187503, September 11, 2009.
20 G.R. No. 184805, March 3, 2010.
My Lecture Notes on R.A No. 9165 Page 7

In People v. Lua Chu and Uy Se Tieng, the Court laid down the distinction between entrapment
and instigation, to wit:

ENTRAPMENT AND INSTIGATION.--While it has been said that the practice of entrapping
persons into crime for the purpose of instituting criminal prosecutions is to be deplored, and
while instigation, as distinguished from mere entrapment, has often been condemned and has
sometimes been held to prevent the act from being criminal or punishable, the general rule is
that it is no defense to the perpetrator of a crime that facilities for its commission were purposely
placed in his way, or that the criminal act was done at the `decoy solicitation' of persons seeking
to expose the criminal, or that detectives feigning complicity in the act were present and
apparently assisting in its commission. This is true especially in that class of cases where the
offense is one of a kind habitually committed, and the solicitation merely furnishes evidence of a
course of conduct. Mere deception by the detective will not shield defendant, if the offense was
committed by him, free from the influence or instigation of the detective. The fact that an agent
of an owner acts as a supposed confederate of a thief is no defense to the latter in a prosecution
for larceny, provided the original design was formed independently of such agent; and where a
person approached by the thief as his confederate notifies the owner or the public authorities,
and, being authorized by them to do so, assists the thief in carrying out the plan, the larceny is
nevertheless committed. It is generally held that it is no defense to a prosecution for an illegal
sale of liquor that the purchase was made by a `spotter,' detective, or hired informer; but there
are cases holding the contrary.

One form of entrapment is the buy-bust operation. It is legal and has been proved to be an
effective method of apprehending drug peddlers, provided due regard to constitutional and legal
safeguards is undertaken.”

Who is the Manufacturer contemplated in this law?

As can be deduced from the definition of manufacture,21 a Manufacturer is any person who is engaged
in the production, preparation, compounding or processing of any dangerous drug and/or controlled precursor
and essential chemical, either directly or indirectly or by extraction from substances of natural origin or
independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and
shall include any packaging or repackaging of such substances, design or configuration of its form, or
labelling or relabeling of its container; except that such terms do not include the preparation, compounding,
packaging or labelling of a drug or substance in the course of his/her professional practice including research,
teaching and chemical analysis of dangerous drugs or such substances that are not intended for sale or for
any other purpose.

The unlawful act applicable to manufacturer is SECTION 8 – MANUFACTURE of Dangerous

Drugs and/or Controlled Precursors and Essential Chemicals

This is committed by any person, who, unless authorized by law, shall engage in the manufacture of
any dangerous drug and/or any controlled precursor and essential chemical.

Any person who acts as a “protector/coddler” of any violator of Section 8 shall also be punished.

The presence of any controlled precursor and essential chemical or laboratory equipment 22 in the
clandestine laboratory23 is a prima facie proof of manufacture of any dangerous drug. It shall be
considered an aggravating circumstance.

What Circumstances Qualify the Imposable Penalty to its Maximum?

I. If the clandestine laboratory is undertaken or established under the following circumstances:

21 Section 3(u), ibid. “Manufacture” refers to the production, preparation, compounding or

processing of any dangerous drug and/or controlled precursor and essential chemical, either directly
or indirectly or by extraction from substances of natural origin or independently by means of chemical
synthesis or by a combination of extraction and chemical synthesis, and shall include any packaging or
repackaging of such substances, design or configuration of its form, or labelling or relabeling of its
container; except that such terms do not include the preparation, compounding, packaging or
labelling of a drug or substance in the course of his/her professional practice including research,
teaching and chemical analysis of dangerous drugs or such substances that are not intended for sale
or for any other purpose.
22 Section 3(t), ibid. “Laboratory Equipment” refers to the paraphernalia, apparatus, materials or
appliances when used, intended for use or designed for use in the manufacture of any dangerous drug
and/or controlled precursor and essential chemical, such as reaction vessel, preparative/purifying
equipment, fermenters, separatory funnel, flask, heating mantle, gas generator, or their substitute.
23 Section 3(e), ibid. “Clandestine Laboratory” refers to any facility used for the illegal manufacture
of any dangerous drug and/or controlled precursor and essential chemical.
My Lecture Notes on R.A No. 9165 Page 8

(a) Any phase of the manufacturing process was conducted in the presence or with the help of
minor/s.
(b) Any phase or 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 practitioner24, chemical engineer, public official or foreigner.
25
II. If the offender organizes, manages or acts as a “financier” of any of the illegal activities
prescribed in Section 8 of the law.

Who is a Protector/Coddler?

A Protector/Coddler refers to any person who knowingly and wilfully consents to the unlawful acts
provided for in RA 9165 and uses his/her influence, power or position in shielding, harbouring, screening or
facilitating the escape of any person he/she knows, or has reasonable grounds to believe on or suspects, has
violated the provisions of said Act in order to prevent arrest, prosecution, and conviction of the violator.26

What unlawful acts of a protector/coddler are penalized under RA 9165?

1. Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 4);
2. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs
and/or Controlled Precursors and Essential Chemicals (Sec. 5);
3. Maintenance of a Den, Drive or Resort (Sec. 6);
4. Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals (Sec. 8); and
5. Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources Thereof (Sec. 16).

The penalty to be imposed to any person who acts as a “protector/coddler” under any of the Sections of RA
9165 mentioned above is imprisonment of 12 years and 1 day to 20 years and a fine ranging from P100 Thousand
to P500 Thousand. If a “protector/coddler” is a government official or employee, the maximum penalties of the
unlawful acts mentioned above shall be imposed, in addition to absolute perpetual disqualification from any public
office. This can be deduced from Section 28 (Criminal liability of Government Officials and Employees) of RA
9165.

What is Planting of Evidence?

“Planting of Evidence” refers to the wilful act by any person or maliciously and surreptitiously inserting,
placing, adding or attaching directly or indirectly, through any overt or covert act, whatever quantity or 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 RA 9165. [Section3(cc)]

Under SECTION 29 of RA 9165 (PLANTING of EVIDENCE), any person found guilty of “planting” any
dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity thereof,
shall be liable under this law, and the penalty is DEATH.

At this juncture, let us now discuss Section 21 of RA 9165, a provision which provides for the proper handling
and preservation of confiscated, seized and/or surrendered dangerous drugs. In the case of People vs. Salvador
Sanchez y Espiritu,27 the Supreme Court, speaking through Justice Arturo D. Brion, said that complying with the
standard safeguards set forth under Section 21 and/or the “Chain of Custody Rule”, - which requires that the
“marking” of the seized items – to truly ensure that they are the same items that enter the chain and are
eventually the ones offered in evidence – should be done (1) in the presence of the apprehended violator (2)
immediately upon confiscation, is a step which initiates the process of protecting innocent persons from dubious
and concocted searches, and of protecting as well the apprehending officers from harassment suits based
on planting of evidence under Section 29 and on allegations of robbery or theft.

The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1, Article II
of R.A. No. 9165, which 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 thereof. [Emphasis ours]

This is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of R.A. No. 9165,

24 Section 3(dd), ibid. “Practitioner” refers to any person who is a licensed physician, dentist, chemist,
medical technologist, nurse, midwife, veterinarian or pharmacist in the Philippines.
25 Section 3 (q), ibid. “Financier” refers to any person who pays for, raises or supplies money for, or
underwrites any of the illegal activities under this Act.
26 Section (ee), Ibid.
27 G.R. No. 175832, October 15, 2008.
My Lecture Notes on R.A No. 9165 Page 9

which reads:

(a) The apprehending officer/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: x x x Provided, further that non-compliance with these
requirements under justifiable 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]

What is the effect of failure to comply with the requirements of Section 21 of RA 9165?

In the said case of People vs. Sanchez, the Supreme Court answered the question in this manner: “We
recognize that the strict compliance with the requirements of Section 21 of R.A. No. 9165 may not always be
possible under field conditions; the police operates under varied conditions, many of them far from ideal, and
cannot at all times attend to all the niceties of the procedures in the handling of confiscated evidence. The
participation of a representative from the DOJ, the media or an elected official alone can be problematic. For this
reason, the last sentence of the implementing rules provides that “non-compliance with these requirements under
justifiable 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.”
Thus, non-compliance with the strict directive of Section 21 of R.A. No. 9165 is not necessarily fatal to the
prosecution’s case; police procedures in the handling of confiscated evidence may still have some lapses, as in
the present case. These lapses, however, must be recognized and explained in terms of their justifiable grounds
and the integrity and evidentiary value of the evidence seized must be shown to have been preserved.”

In the same case of People vs. Sanchez, the Supreme Court extensively discussed the “Chain of Custody
Rule” and its application, to wit:

“Under Section 5, Article II of R.A.. No. 9165, the elements necessary in every
prosecution for the illegal sale of shabu are: (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. Implicit in
all these is the need for proof that the transaction or sale actually took place, coupled with the
presentation in court of evidence of corpus delicti - the body of the crime whose core is
the confiscated illicit drug.

Proof beyond reasonable doubt demands that unwavering exactitude be observed in

establishing the corpus delicti: every fact necessary to constitute the crime must be established.
The chain of custody requirement performs this function in buy-bust operations as it ensures
that doubts concerning the identity of the evidence are removed. In a long line of cases, we
have considered it fatal for the prosecution to fail to prove that the specimen submitted for
laboratory examination was the same one allegedly seized from the accused.

Black’s Law Dictionary explains chain of custody in this wise:

In evidence, the one who offers real evidence, such as narcotics in a trial of
drug case, must account for the custody of the evidence from the moment in which it
reaches his custody until the moment in which it is offered in evidence, and such
evidence goes to the weight not to admissibility of evidence. Com. V. White, 353
Mass. 409, 232 N.E.2d 335.

Likewise, Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002
which implements R.A. No. 9165 defines “chain of custody” as follows:

“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 use
in court as evidence, and the final disposition.

Although this regulation took effect on October 18, 2002 (or after the commission of the
crime charged), it is nonetheless useful in illustrating how the process of preserving the integrity
of the chain of custody of the seized drugs is ensured and maintained. That the police failed to
approximate these safeguards and the prosecution failed to prove the identity of the specimen
allegedly seized and the specimen submitted as evidence during the trial is evident from SPO2
Sevilla himself who testified as follows:
My Lecture Notes on R.A No. 9165 P a g e 10

FISCAL GIBSON ARAULA:

Q: After informing [the accused] of his constitutional right what

happened Mr. Witness?

SPO2 LEVI SEVILLA

A: We brought him to our station.

Q: How about the transparent plastic sachet, where is it?

A: It is in my possession.

Q: How about the buy-bust money in the amount of P100.00?

A: I recovered it from the right pants pocket.

Q: Now you said that you brought the accused to the Police Station,
what happened to the Police Station?

A: We turn him over to the Desk Officer.

Q: What did you turn over?

A: The accused and the evidences, the plastic shabu sir.

Q: Before you turn over that plastic sachet Mr. Witness, what did
you put there?

A: I put my initial and initial of the accused.

xxxx

Q: By the way Mr. Witness after you turned over to the investigator
the plastic sachet, did you happen to know where the
investigator brought the plastic sachet?

A: I gave that plastic sachet first to the table of the Desk Officer
and the Desk Officer gave it to the investigator.

FISCAL GIBSON ARAULA:

That would be all for the witness.

Significantly, this was the only testimony in the case that touched on the chain of
custody of the seized evidence. It failed to disclose the identities of the desk officer and the
investigator to whom the custody of the drugs was given, and how the latter handled these
materials. No reference was ever made to the person who submitted the seized specimen to
the PNP Crime Laboratory for examination. Likewise, no one testified on how the specimen was
handled after the chemical analysis by the forensic chemist. While we are aware that the RTC's
Order of August 6, 2003 dispensed with the testimony of the forensic chemist because of the
stipulations of the parties, we view the stipulation to be confined to the handling of the specimen
at the forensic laboratory and to the analytical results obtained. The stipulation does not cover
the manner the specimen was handled before it came to the possession of the forensic chemist
and after it left his possession. To be sure, personnel within the police hierarchy (as SPO2
Sevilla’s testimony casually mentions) must have handled the drugs but evidence of how this
was done, i.e., how it was managed, stored, preserved, labeled and recorded from the time of its
seizure, to its receipt by the forensic laboratory, up until it was presented in court and
subsequently destroyed – is absent from the evidence adduced during the trial. To repeat an
earlier observation, even the time and place of the initial marking of the alleged evidence are not
at all certain as the testimony on this point varies.

The recent case of Lopez v. People28 is particularly instructive on how we expect the
chain of custody or “movement” of the seized evidence to be maintained and why this must be
shown by evidence:

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
28 G.R. No. 172953, April 30, 2008 (citations omitted).
My Lecture Notes on R.A No. 9165 P a g e 11

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.

While testimony about a perfect chain is not always the standard because it is
almost always impossible to obtain, an unbroken chain of custody becomes
indispensable and essential when the item of real evidence is not distinctive and is
not really identifiable, or when its condition at the time of testing or trial is critical, or
when a witness has failed to observe its uniqueness. The same standard likewise
obtains in case the evidence is susceptible to alteration, tampering, contamination
and even substitution and exchange. In other words, the exhibit's level of
susceptibility to fungibility, alteration or tampering – without regard to whether the
same is advertent or otherwise not – dictates the level of strictness in the application
of the chain of custody rule. [Emphasis ours]

Where is the venue of physical inventory and photograph requirement under Section 21 vis-a-vis the
“marking” of seized evidence?

People vs. Sanchez provided the answer, to quote:

“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 nearest office of the apprehending officer/team,
whichever is practicable, in case of warrantless seizures; Provided, further that
non-compliance with these requirements under justifiable 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 law’s intent of preserving their integrity and
evidentiary value.

What Section 21 of R.A. No.9165 and its implementing rules do not expressly specify is
the matter of “marking” of the seized items in warrantless seizures to ensure that the evidence
seized upon apprehension is the same evidence subjected to inventory and photography when
these activities are undertaken at the police station rather than at the place of arrest.
Consistency with the "chain of custody" rule requires that the “marking” of the seized items –
to truly ensure that they are the same items that enter the chain and are eventually the ones
offered in evidence – should be done (1) in the presence of the apprehended violator (2)
immediately upon confiscation.”

What are the implications of failure to comply with Sec. 21, paragraph 1?
People vs. Sanchez held:

“In People v. Orteza, the Court had the occasion to discuss the implications of the
failure to comply with Section 21, paragraph 1, to wit:

… In People v. Laxa, where the buy-bust team failed to mark the confiscated
marijuana immediately after the apprehension of the accused, the Court held that the
deviation from the standard procedure in anti-narcotics operations produced doubts
as to the origins of the marijuana. Consequently, the Court concluded that the
prosecution failed to establish the identity of the corpus delicti.
My Lecture Notes on R.A No. 9165 P a g e 12

The Court made a similar ruling in People v. Kimura, where the Narcom
operatives failed to place markings on the seized marijuana at the time the accused
was arrested and to observe the procedure and take custody of the drug.

More recently, in Zarraga v. People, the Court held that the material
inconsistencies with regard to when and where the markings on the shabu were
made and the lack of inventory on the seized drugs created reasonable doubt as
to the identity of the corpus delicti. The Court thus acquitted the accused due to the
prosecution's failure to indubitably show the identity of the shabu. [Emphasis
supplied]”

Another important provisions of RA 9165 that you should be reminded are:

1) SECTION 27. Public Officer or Employee Liable for MISAPPROPRIATION, MISAPPLICATION

or FAILURE to ACCOUNT for the Confiscated, Seized and/or Surrendered Dangerous Drugs,
Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment Including the Proceeds or Properties Obtained from the Unlawful Act
Committed

Any public officer or employee who misappropriates, misapplies or fails to account for confiscated, seized
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 acts shall be liable under this law and shall suffer absolute perpetual
disqualification from any public office. The penalty is life imprisonment to death and fine ranging from
P500 Thousand to P10 Million.

If said offender is an elective local or national official found to have benefited from the proceeds of the
trafficking of dangerous drugs, or have received any financial or material contributions or donations from
natural or juridical persons found guilty of trafficking dangerous drugs, he shall be removed from office
and perpetually disqualified from holding any elective or appointive positions in the government, its
divisions, subdivisions, and intermediaries, including government-owned or controlled corporations.

2) SECTION 91. FAILURE or REFUSAL to TESTIFY in PROCEEDINGS INVOLVING OFFENSES

UNDER THIS LAW

This is committed by any member of law enforcement agencies or any other government official and
employee 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 law, without any valid reason. His criminal
liability hereunder is without prejudice to the administrative liability that may be imposed on him by his
immediate superior and/or the appropriate body. The penalty is imprisonment of 12 years and 1 day to
20 years and a fine of not less than P500,000.00.

The offender’s immediate superior or responsible government officer shall likewise be liable under this
law and may suffer perpetual absolute disqualification from public office in the event that:

(a) Despite due notice to him and to the witness concerned, he (the immediate superior or
government officer) does not exert reasonable effort to present such witness to the court.

(b) He (the immediate superior or government officer) does not notify the court where the case is
pending of the order to transfer or re-assign the aforementioned member of the law
enforcement agency or government employee within twenty-four (24) hours from its approval.
The penalty is imprisonment of not less than 2 years but not more than 6 years, fine with
accessory penalty of perpetual absolute disqualification to hold public office.

3) SECTION 92. DELAY and BUNGLING in the PROSECUTION of Drug Cases

Any government officer or employee tasked with the prosecution of drug-related cases under this law,
who, through patent laxity, inexcusable neglect, unreasonable delay or deliberately causes the
unsuccessful prosecution and/or dismissal of the said drug cases, shall be liable hereunder. The penalty
is imprisonment ranging from 12 years and 1 day to 20 years without prejudice to his/her prosecution
under the pertinent provisions of the Revised Penal Code.

Criminal Forfeiture of the Proceeds and Instruments of the Unlawful Act

How are confiscated, seized and forfeited dangerous drugs disposed of?

SECTION 20. CONFISCATION and FORFEITURE of the PROCEEDS or INSTRUMENTS of the Unlawful
Act, Including the PROPERTIES or PROCEEDS Derived from the Illegal Trafficking 29 of Dangerous
Drugs and/or Precursors and Essential Chemicals

29 Section 3(r), ibid. “Illegal Trafficking” refers to 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.
My Lecture Notes on R.A No. 9165 P a g e 13

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 drug 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 the 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.

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 so confiscated, seized and/or surrendered, for proper disposition. (Section 21)

The Land and/or greenhouses on which plant sources of dangerous drugs are cultivated or cultured shall
be confiscated and escheated in favour of the State, unless the owner thereof can prove lack of knowledge of
such cultivation or culture despite the exercise of due diligence on his/her part. (Section 16)

Moreover, if the den, dive or resort where any prohibited drug is used or sold in any form, is owned by a
third person, the same shall be confiscated and escheated in favor of the government. However, the criminal
complaint must name the owner of the place as an accused and must specifically allege that said place is
intentionally used in the furtherance of the crime. The prosecution must also prove intent on the part of the
owner to use the property for such purpose. (Section 6)