RA 9165

Elements of violation of Sec. 4 or Sec. 5:

1. Offender imports / transports / delivers / sells / trades / administers /
dispenses gives away to another / distributes / dispatches in transit dangerous
drugs OR acts as broker in such transaction
2. Activity is not authorized by law
3. Offender knows that what he is dealing with is a dangerous drug
- Lack of knowledge that what was inside the sachet was shabu is a defense
in a case involving possession of drugs

Apart from the pusher/trafficker/possessor or user, PROTECTORS or CODDLERS and

FINANCERS are also liable
 Protector/coddler – person who knowingly and willfully consents to the
unlawful acts and uses his influence, power or position to shield, harbor, or
facilitate the escape of any person; to prevent the arrest, prosecution and
conviction of violator
 Financer – who pays for, raises or supplies money for, underwrites illegal
activities

SEC. 4. Importation of Dangerous Drugs and/or Controlled Precursors and

Essential Chemicals. — The penalty of life imprisonment to death and a fine
ranging from Five hundred thousand pesos (P500,000.00) to Ten million
pesos (P10,000,000.00) shall be imposed upon any person, who, unless
authorized by law, shall import or bring into the Philippines any dangerous
drug, regardless of the quantity and purity involved, including any and all
species of opium poppy or any part thereof or substances derived therefrom
even for floral, decorative and culinary purposes.

 Vessel or airplane came from a foreign port / place / country; where the facts
are unclear whether found to be in domestic or international terminal, the
offender should not be liable for importation but only for possession of
dangerous drugs
 Bringing lollipop from Amsterdam laced with drugs as “pasalubong” is crime of
importation of dangerous drugs

SEC. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and

Transportation of Dangerous Drugs and/or Controlled Precursors and
Essential Chemicals. — The penalty of life imprisonment to death and a fine ranging
from Five hundred thousand pesos (P500,000.00) to Ten million pesos
(P10,000,000.00) shall be imposed upon any person, who, unless authorized by law,
shall sell, trade, administer, dispense, deliver, give away to another,
distribute, dispatch in transit or transport any dangerous drug, including any and
all species of opium poppy regardless of the quantity and purity involved, or shall act
as a broker in any of such transactions.

The penalty of imprisonment ranging from twelve (12) years and one (1) day to
twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00)
to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person,
who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give
away to another, distribute, dispatch in transit or transport any controlled precursor
and essential chemical, or shall act as a broker in such transactions.

If the sale, trading, administration, dispensation, delivery, distribution or

transportation of any dangerous drug and/or controlled precursor and essential
chemical transpires within one hundred (100) meters from the school, the maximum
penalty shall be imposed in every case.

For drug pushers who use 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, the maximum
penalty shall be imposed in every case.

If the victim of the offense is a minor or a mentally incapacitated individual, or should

a dangerous drug and/or a controlled precursor and essential chemical involved in any

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offense herein provided be the proximate cause of death of a victim thereof, the
maximum penalty provided for under this Section shall be imposed.

The maximum penalty provided for under this Section shall be imposed upon any
person who organizes, manages or acts as a “financier” of any of the illegal activities
prescribed in this Section.
The penalty of twelve (12) years and one (1) day to twenty (20) years of
imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to
Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who
acts as a “protector/coddler” of any violator of the provisions under this Section.

a. Transportation of dangerous drugs – carrying from one place to another;

ownership immaterial;

- attempted transportation – wanting to bring prohibited drugs abroad,

placed inside luggage, but was discovered by authorities during x-ray

b. Selling of dangerous drugs – giving away whether for money or any other
consideration; consummated upon delivery of the drug, receipt of money is
not required

- attempted sale – when offender arrested prior to actual or constructive

delivery of the drug and or controlled precusor and essential element
- people liable:
o seller – liable for illegal sale of dangerous drugs
o buyer – liable for possession of dangerous drugs E: when police
officer in buy-bust operation

c. Delivery of dangerous drugs – any act of knowingly passing dangerous

drugs to another, personally or otherwise, with or without consideration
d. Dispatching dangerous drugs in transit – sending off dangerous drugs to
a particular destination

- People liable:
o “A” who ordered the dispatching/delivery of drugs to B –
dispatching dangerous drugs
o “B” who delivered the drugs – delivery of dangerous drugs
o “C” who purchased – possession of dangerous drugs

e. Giving away dangerous drugs – giving as a gift or premium, with intention

of transferring ownership

- Where no intention to give away – illegal possession of dangerous drug

f. Trading of dangerous drugs – involves the illegal trafficking of dangerous

drugs using electronic devices or acting as broker whether for money or any
other consideration

- Ex: drug lords in the Bilibid who are transacting dangerous drugs with
others outside through internet or cellphone

g. Administering dangerous drugs – introducing into the body of another,

with or without knowledge by injection/inhalation/ingestion OR committing
any act of indispensable assistance to a person in administering a dangerous
drugs unless administered by licensed practitioner
h. Brokerage of dangerous drugs – acting as agent in arranging any of the
transactions; agent employed to make bargains, middleman or negotiator

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DEN, DIVE, RESORT

- Place where drugs are HABITUALLY used by people who frequent it

1. Owner who maintains a den, dive or resort where drugs HABITUALLY

used or REGULARLY sold (Sec. 6)

- Property shall be escheated in favor of the government

2. Other persons (Sec. 7)

a. Employees provide they are AWARE of the nature of the place
as such
b. Visitors who are AWARE of the nature of the place and shall
knowingly visit the same

SEC. 11. Possession of Dangerous Drugs. — The penalty of life imprisonment to death
and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million
pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by
law, shall possess any dangerous drug in the following quantities, regardless of the
degree of purity thereof:

(1) 10 grams or more of opium;

(2) 10 grams or more of morphine;
(3) 10 grams or more of heroin;
(4) 10 grams or more of cocaine or cocaine hydrochloride;
(5) 50 grams or more of methamphetamine hydrochloride or “shabu”;
(6) 10 grams or more of marijuana resin or marijuana resin oil;
(7) 500 grams or more of marijuana; and
(8) 10 grams or more of other dangerous drugs such as, but not limited to,
methylenedioxymethamphetamine (MDMA) or “ecstasy”, paramethoxyamphetamine
(PMA), trimethoxyamphetamine (TMA), lysergic acid diethylamine (LSD), gamma
hydroxybutyrate (GHB), and those similarly designed or newly introduced drugs and
their derivatives, without having any therapeutic value or if the quantity possessed is
far beyond therapeutic requirements, as determined and promulgated by the Board in
accordance to Section 93, Article XI of this Act.

Otherwise, if the quantity involved is less than the foregoing quantities, the penalties
shall be graduated as follows:

(1) Life imprisonment and a fine ranging from Four hundred thousand pesos
(P400,000.00) to Five hundred thousand pesos (P500,000.00), if the quantity of
methamphetamine hydrochloride or “shabu” is ten (10) grams or more but less than
fifty (50) grams;

(2) Imprisonment of twenty (20) years and one (1) day to life imprisonment and a fine
ranging from Four hundred thousand pesos (P400,000.00) to Five hundred thousand
pesos (P500,000.00), if the quantities of dangerous drugs are five (5) grams or more
but less than ten (10) grams of opium, morphine, heroin, cocaine or cocaine
hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride
or “shabu”, or other dangerous drugs such as, but not limited to, MDMA or “ecstasy”,
PMA, TMA, LSD, 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 requirements; or three hundred (300) grams or more but less
than five hundred (500) grams of marijuana; and

(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a fine
ranging from Three hundred thousand pesos (P300,000.00) to Four hundred thousand
pesos (P400,000.00), if the quantities of dangerous drugs are less than five (5) grams
of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin or
marijuana resin oil, methamphetamine hydrochloride or “shabu”, or other dangerous
drugs such as, but not limited to, MDMA or “ecstasy”, PMA, TMA, LSD, 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 requirements;
or less than three hundred (300) grams of marijuana.

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 POSSESSION – presupposes that the possessor acted with intelligence and
knowledge; absent animus possidendi is a defense

1. Possession of shabu AND marijuana – considered only as a SINGLE OFFENSE

of possession of dangerous drugs
2. Possession AND use – charged only for ILLEGAL POSSESSION under Sec. 11,
use of the dangerous drugs is absorbed in possession
3. Possession AND sale – charged for SALE OF DANGEROUS drugs, the
possession of the drugs to be sold absorbed in sale; BUT if offender has in
possession another quantity not subject of sale, liable also for possession
4. Possession of drugs AND paraphernalia – if drugs and paraphernalia found by
one who USED  charged only for ILLEGAL POSSESSION; if NOT using,
example if seller  both possession of drugs and possession of drug
paraphernalia

 VARIANCE RULE
o Jurisprudence: illegal sale necessarily includes crime of possession
THUS, same ruling to other crimes also applicable
o If the other crime is NOT PROVEN; convict of POSSESSION
o Possession and Sale – (sale not proven) convict the accused of
POSSESSION since this is the lesser crime, which is necessarily
included in the charge of sale
o Possession and Importation – (if place of origin not proven)
o Possession and Delivery – (delivery not proven)
o Possession of drugs and paraphernalia – NO! not necessarily included

SEC. 15. Use of Dangerous Drugs. — A person apprehended or arrested, who

is found to be positive for use of any dangerous drug, after a confirmatory
test, shall be imposed a penalty of a minimum of six (6) months rehabilitation
in a government center for the first offense, subject to the provisions of
Article VIII of this Act. If apprehended using any dangerous drug for the
second time, he/she shall suffer the penalty of imprisonment ranging from
six (6) years and one (1) day to twelve (12) years and a fine ranging from
Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos
(P200,000.00): Provided, That this Section shall not be applicable 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 Act, in which case the
provisions stated therein shall apply.

USE OF DANGEROUS DRUGS

(a) person apprehended for arrested for a drug related crime
(b) found positive for the use after confirmatory test
(c) NOT in possession of other dangerous drugs
- If found to be in possession  charged for POSSESSION OF
DANGEROUS DRUGS

People v Taboy:
(1) Accused arrested for engaging in the SALE of shabu
(2) He was subjected to a drug test
(3) Result of test yielded positive for shabu

 If caught in the act of USING  can be ARRESTED for POSSESSION OF

DANGEROUS DRUGS  if drug test conducted and found to be positive 
CONVITED for USE OF DANGEROUS DRUGS
o If he is in possession of other drugs of other quantity – ALSO liable for
POSSESSION

PENALTY FOR FIRST TIME OFFENDERS – minimum 6 months rehabilitation

- Not subject to ISLaw; PMC of minority CANNOT be appreciated; but
preventive imprisonment may be credited in the service of penalty of
rehabilitation

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“SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered
Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors
and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory
Equipment. – 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
in the following manner:

“(1) The apprehending team having initial custody and control of the
dangerous drugs, controlled precursors and essential chemicals,
instruments/paraphernalia and/or laboratory equipment shall, immediately
after seizure and confiscation, conduct a physical inventory of the seized
items 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, with an elected public official and a representative
of the National Prosecution Service or the media who shall be required to sign
the copies of the inventory and be given a copy thereof: 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, finally, That noncompliance of 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
and custody over said items. (justifiable reason [not palusot!])

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous

drugs, plant sources of dangerous drugs, controlled precursors and essential
chemicals, as well as instruments/paraphernalia and/or laboratory
equipment, the same shall be submitted to the PDEA Forensic Laboratory for
a qualitative and quantitative examination;

“(3) A certification of the forensic laboratory examination results, which shall

be done by the forensic laboratory examiner, shall be issued immediately
upon the receipt of the subject item/s: Provided, That when the volume of
dangerous drugs, plant sources of dangerous drugs, and controlled
precursors and essential chemicals does not allow the completion of testing
within the time frame, a partial laboratory examination report shall be
provisionally issued stating therein the quantities of dangerous drugs still to
be examined by the forensic laboratory: Provided, however, That a final
certification shall be issued immediately upon completion of the said
examination and certification;

(4) After the filing of the criminal case, the Court shall, within seventy-two
(72) hours, conduct an ocular inspection of the confiscated, seized and/or
surrendered dangerous drugs, plant sources of dangerous drugs, and
controlled precursors and essential chemicals, including the
instruments/paraphernalia and/or laboratory equipment, and through the
PDEA shall within twenty-four (24) hours thereafter proceed with the
destruction or burning of the same, in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the DOJ, civil
society groups and any elected public official. The Board shall draw up the
guidelines on the manner of proper disposition and destruction of such item/s
which shall be borne by the offender: Provided, That those item/s of lawful
commerce, as determined by the Board, shall be donated, used or recycled for
legitimate purposes: Provider, further, That a representative sample, duly
weighed and recorded is retained;

(5) The Board shall then issue a sworn certification as to the fact of
destruction or burning of the subject item/s which, together with the

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representative sample/s in the custody of the PDEA, shall be submitted to the
court having jurisdiction over the case. In all instances, the representative
sample/s shall be kept to a minimum quantity as determined by the Board;

(6) The alleged offender or his/her representative or counsel shall be allowed

to personally observe all of the above proceedings and his/her presence shall
not constitute an admission of guilt. In case the said offender or accused
refuses or fails to appoint a representative after due notice in writing to the
accused or his/her counsel within seventy-two (72) hours before the actual
burning or destruction of the evidence in question, the Secretary of Justice
shall appoint a member of the public attorney’s office to represent the
former;

(7) After the promulgation and judgment in the criminal case wherein the
representative sample/s was presented as evidence in court, the trial
prosecutor shall inform the Board of the final termination of the case and, in
turn, shall request the court for leave to turn over the said representative
sample/s to the PDEA for proper disposition and destruction within twenty-
four (24) hours from receipt of the same; and

(8) Transitory Provision: a) Within twenty-four (24) hours from the

effectivity of this Act, dangerous drugs defined herein which are presently in
possession of law enforcement agencies shall, with leave of court, be burned
or destroyed, in the presence of representatives of the Court, DOJ,
Department of Health (DOH) and the accused and/or his/her counsel, and, b)
Pending the organization of the PDEA, the custody, disposition, and burning
or destruction of seized/surrendered dangerous drugs provided under this
Section shall be implemented by the DOH.

CHAIN OF CUSTODY RULE – duly recorded authorized movement of the dangerous

drug from its confiscation until presentation in court. The purpose of which is to
ensure the integrity of the corpus delicti.

LINKS
1. Seizure and marking of the drug recovered from the accused by the
apprehending officer
2. Turnover of the illegal drug seized by apprehending officer to investigating
officer
3. Turnover of investigating officer to the forensic chemist for laboratory
examination
4. Turnover and submission of the marked illegal drug from the forensic chemist
to court

Inventory and photograph

 Immediately after seizure and confiscation
 At the (1) place where warrant is served; (2) nearest police station or nearest
office in case of warrantless arrest
 Presence of 2 witnesses:
1. Accused or person from whom items confiscated
2. Elected public official (need)
3. Representative from the NPS OR media (alternative)
o 3 not present, absent justifiable circumstance  accused will be
acquitted because the seizure of the drugs is invalid
 Accused must sign the inventory and drugs should be submitted to the PDEA
Forensic Lab for examination within 24 hours from confiscation
 NON-compliance will NOT render void and invalid the seizure provided that the
(1) integrity and evidentiary value of the items are properly preserved and (2)
justifiable ground for non-compliance
o There must be a genuine and sufficient attempt to comply with the law

MARKING OF THE DRUGS

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  In the presence of the offender and immediately upon confiscation

SEC. 23. Plea-Bargaining Provision. — Any person charged under any

provision of this Act regardless of the imposable penalty shall not be allowed
to avail of the provision on plea-bargaining

 UNCONSTITUTIONAL! Estipona Jr v Lobrigo, Congress has no power to prohibit

plea bargaining, it is contrary to the rule-making authority of the SC. Only SC
has the power to promulgate rules of pleading, practice and procedure.
 Plea bargaining allowed:
o Charged of POSSESSION, shabu less than 5g, marijuana less than
300g
o Charged with SALE, shabu less than 1g, marijuana less than 10g
o Charged with POSSESSION during PARTIES, SOCIAL GATHERINS,
MEETINS, shabu less than 5g, marijuana less than 300g
o POSSESSION, shabu 5-9.9g; marijuana 300-499g BUT NO PROBATION
allowed

MAX PENALTY
- Life imprisonment

Under RPC in rel to Juvenile justice welfare act

- Min age of crim responsibility – above 15.
o 1-15 (15 and below, absolutely except)
o 16-18 without discernment (over 15 under 18, exempt only if
without discernment)
o With discernment – convicted; but penalty is 2 degrees lower than
that prescribed by law; unless CICL is entitled to suspension of
sentence for being a minor
 GR: mitigating circumstances NOT applied suppletorily

- CICL since 12 was selling shabu, caught 16

o Penalty?  CICL acted with discernment  not less than 2 degrees
lower than that prescribed (LI)  BUT there is no penalty 2
degrees lower than life imprisonment  to remedy, pls check Sec
98 of 9165 “limited applicability of RPC” – in such situation, the
penalty of LI is CONVERTED to RP, so that a definite penalty can
be fixed - PRISION CORRECCIONAL, in its appropriate period,
without prejudice to IsLaw and suspension!

Use or being under the influence of dangerous drug is ALWAYS a special

AGGRAVATING circumstance!