UPDATES IN RA 9165
“IN A SUCCESSFUL PROSECUTION FOR
ILLEGAL SALE OF SHABU, THE
FOLLOWING ELEMENTS MUST CONCUR:
"(1) THE IDENTITY OF THE BUYER AND
THE SELLER, THE OBJECT AND THE
CONSIDERATION; AND (2) THE DELIVERY
OF THE THINGS SOLD AND THE PAYMENT
THEREFORE. X X X”
WHAT IS MATERIAL IN A PROSECUTION
FOR ILLEGAL SALE OF DANGEROUS
DRUGS IS THE PROOF THAT THE
TRANSACTION OR SALE ACTUALLY TOOK
PLACE, COUPLED WITH THE
PRESENTATION IN COURT OF THE CORPUS
DELICTI" OR THE ILLICIT DRUG IN
EVIDENCE.” [PP V BATURI SEPT 01,2014,
GR NO. 189812]
JURISPRUDENCE CLEARLY SETS THE
ESSENTIAL ELEMENTS TO BE
ESTABLISHED IN THE PROSECUTION FOR
ILLEGAL SALE OF SHABU, VIZ: (1) THE
IDENTITY OF THE BUYER AND THE
SELLER, THE OBJECT OF THE SALE AND
THE CONSIDERATION; AND (2) THE
DELIVERY OF THE THING SOLD AND
PAYMENT THEREFOR.
SUCCINCTLY, THE DELIVERY OF THE
ILLICIT DRUG TO THE POSEUR-BUYER
AND THE RECEIPT BY THE SELLER OF
THE MARKED MONEY SUCCESSFULLY
CONSUMMATES THE BUY-BUST
TRANSACTION.” [PEOPLE V.
GONZALES, 430 PHIL. 504, 513
(2002)].”
WHAT IS MATERIAL, THEREFORE, IS
THE PROOF THAT THE TRANSACTION
OR SALE TRANSPIRED, COUPLED WITH
THE PRESENTATION IN COURT OF
THE CORPUS DELICTI.” [PEOPLE V.
REQUIZ, G.R. NO. 130922, 19
NOVEMBER 1999, 318 SCRA 635,
647.]
FAILURE TO STRICTLY COMPLY WITH THE
CHAIN OF CUSTODY RULE IS NOT FATAL.
(1) THE POLICE OFFICERS INVENTORIED
THE CONFISCATED SHABU IMMEDIATELY
AFTER ITS SEIZURE FROM APPELLANT.
THE PROCESS WAS WITNESSED BY
BARANGAY OFFICIALS AND A MEDIA
REPRESENTATIVE WHO AFFIXED THEIR
SIGNATURES IN THE CERTIFICATE OF
INVENTORY;
(2) THE INVENTORY-TAKING WAS
PHOTOGRAPHED AND THE PHOTOGRAPHS
SHOW THAT THE ACTUAL CONDUCT OF
INVENTORY WAS WITNESSED BY
APPELLANT HIMSELF;
(3) IT IS UNDISPUTED THAT APPELLANT WAS
ASKED TO AFFIX HIS SIGNATURE IN THE
CERTIFICATE OF INVENTORY BUT HE
REFUSED;
(4) IT WAS SHOWN THAT A PDEA PERSONNEL
THEREAFTER PREPARED A FORMAL REQUEST
AND THE WHITE CRYSTALLINE GRANULES
CONTAINED IN THE PLASTIC SACHETS SEIZED
FROM APPELLANT WERE INDORSED AND
DELIVERED PROMPTLY TO THE CRIME
LABORATORY.
FOUR LINKS IN CHAIN OF CUSTODY OF
CONFISCATED ILLEGAL DRUGS
• FIRST LINK: MARKING OF THE DRUGS
RECOVERED FROM THE ACCUSED BY
THE APPREHENDING OFFICER
• SECOND LINK: TURNOVER OF
THE SEIZED DRUGS BY THE
APPREHENDING OFFICER TO THE
INVESTIGATING OFFICER
• THIRD LINK: TURNOVER BY
THE INVESTIGATING OFFICER OF THE
ILLEGAL DRUGS TO THE FORENSIC
CHEMIST
• FOURTH LINK: TURNOVER OF
THE MARKED ILLEGAL DRUG SEIZED BY
THE FORENSIC CHEMIST TO THE COURT.
WHO MUST BE PRESENT DURING
MARKINGS AND INVENTORY
• IN THE PRESENCE OF THE ACCUSED OR
COUNSEL OR HIS REPRESENTATIVE
• A REPRESENTATIVE FROM MEDIA
AND/OR DOJ REPRESENTATIVE AND
• AN ELECTIVE OFFICIALS (SEC 21 RA
9165 AS AMENDED BY RA 10640)
WHERE IS THE PLACE WERE MARKINGS
AND INVENTORY SHALL BE MADE
• AT THE PLACED WHERE THE BUY
BUST WAS MADE
OR
• AT THE NEAREST POLICE STATION,
WHICHEVER IS PRACTICABLE
(SEC 21 RA 9165 AS AMENDED BY RA 10640)
MARKINGS AND INVENTORY OF
SEIZED ITEMS
• GENERAL RULE: MARKINGS ,INVENTORY AND
PHOTOGRAPHING MUST BE CONDUCTED AT THE
PLACED WHERE THE ACTUAL SEIZURE OF ITEMS
HAPPENED
• EXCEPTION:1.WHEN SAFETY AND SECURITY OF THE
APPREHENDING OFFICERS AND WITNESS REQUIRED
BY LAW OR
• 2. THE ITEMS SIEZED ARE THREATENED BY
IMMDEIATE OR EXTREME DANGER SUCH AS
RETALIATORY ACTION OF THOSE WITH CAPACITY TO
MOUNT COUNTER ASSAULT, TO JUSTIFY MARKINGS
SOMEWHERE ELSE(WHICH EVER IS PRACTICABLE)AT
THE NEAREST POLICE STATION
EARNEST EFFORT MUST BE SHOWN
• JURISPRUDENCE DICTATE THAT THERE
MUST BE EVIDENCE OF EARNEST OR
SERIOUS EFFORT EXERTED TO SECURE
ATTENDANCE OF THE REQUIRED
WITNESSES IN THE CONDUCT OF
INVENTORY OF SEIZED ITEMS. TO JUSTIFY
NON COMPLIANCE WITH THE
REQUIREMENT OF SECTION 21 OF RA 9165
AS AMENDED BY RA 10640.
REQUIREMENT FOR EVIDENCE TO BE
ADMITTED EVEN NON COMPLIANCE WITH
SECTION 21 (1) OF R.A. 9165
• THE EXISTENCE OF JUSTIFIABLE
GROUNDS ALLOWING DEPARTURE FROM
THE STRICT COMPLIANCE
-AND-
• THE INTEGRITY AND EVIDENTIARY
VALUE OF THE SEIZED ITEMS ARE
PROPERLY PRESERVED BY THE
APPREHENDING TEAM (PP V LUNA 21
MARCH 2018 GR NO.219164)
PRESENCE OF REQUIRED WITNESSES
UNDER SECTION 21 OF RA 9165
• THE WITNESSES MANDATORILY REQUIRED
UNDER SECTION 21 MUST BE PHYSICALLY
OR ACTUALLY PRESENT AT THE TIME OF
ACTUAL ARREST OF THE ACCUSED
-RATIONALE-
• IT IS THEIR PRESENCE AT THE TIME OF
SEIZURE AND CONFISCATION THAT WOULD
FORECLOSE THE PERNICIOUS PRACTICE OF
PLANTING OF EVIDENCE (PP V LUNA)
COMMON DOCUMENTARY
EVIDENCE
Ø INCIDENT REPORT
Ø PRE COORDINATION WITH PDEA
Ø BOOKING SHEET AND ARREST
REPORT
Ø MUGSHOT OF THE PERSON
ARRESTED
Ø AFFIDAVIT OF APPREHENSION
Ø AFFIDAVIT OF POSEUR BUYER
Ø CONFISCATION RECEIPT OF ITEMS
RECOVERED FROM THE ACCUSED
Ø MEDICAL CERTIFICATE OF THE
PERSON ARRESTED
Ø PICTURES DOCUMENTING THE
INCIDENT OF ARREST AND COLLATION
OF EVIDENCE.
WHY MARKING BE MADE IN THE PRESENCE
OF A COMPETENT WITNESS
• TO PROTECT THE INTEGRITY OF THE
EVIDENCE;
• AS PART OF CHAIN OF CUSTODY OF
EVIDENCE CONFISCATED; AND
• AS CORROBORATIVE EVIDENCE
• TO PROVE LEGALITY OF ARREST
AND CONFISCATION OF ILLEGAL
ITEMS
PEOPLE VS LIM
GR NO. 231989/SEPT 4, 2018
WHAT IS CHAIN OF CUSTODY ?
DULY RECORDED AUTHORIZED MOVEMENTS
AND CUSTODY OF SEIZED CHEMICALS OR
PLANT SOURCES OF DANGEROUS DRUGS,
FROM THE TIME OF
SEIZURE/CONFISCATION TO RECEIPT IN
FORENSIC LABORATORY TO SAFEKEEPING
AND PRESENTATION IN COURT.
SUCH RECORDS OF MOVEMENTS AND
CUSTODY OF SEIZED ITEM SHALL INCLUDE
THE IDENTITY AND SIGNATURE OF THE
PERSON WHO HELD TEMPORARY CUSTODY
OF THE SIEZED ITEM AND THE DATE AND
TIME WHEN SUCH TRANSFER OF CUSTODY
WERE MADE IN THE COURSE OF
SAFEKEEPING AND USE IN COURT AS
EVIDENCE, AND FINAL THE DISPOSITION
[SECTION 1 (B) OF THE DANGEROUS DRUG
BOARD REGULATION NO.1 SERIES OF 2002]
BASIS ON STRINGENT REQUIREMENT
ON CHAIN OF CUSODY
• AS A METHOD OF AUTHENTICATING EVIDENCE
THE CHAIN OF CUSTODY RULE REQUIRES THAT
THE ADMISSION OF AN EXHIBIT BE PRECEEDED
BY EVIDENCE SUFFICIENT TO SUPPORT A
FINDINGS THAT THE MATTER IN QUESTION IS
WHAT THE PROPONENT CLAIMS IT TO BE. IT
WOULD INCLUDE TESTIMONY ABOUT EVERY
LINK IN THE CHAIN FROM THE MOMENT THE
ITEM WAS PICKED UP TO THE TIME IT IS
OFFERED INTO EVIDENCE. IN SUCH A WAY THAT
EVERY PERSON WHO TOUCHED THE EXHIBIT
WOULD DESCRIBE HOW AND FROM WHOM IT WAS
RECEIVED ETC. ETC.
MANDATORY POLICY TO BE
FOLLOWED IN DRUG RELATED ARREST
• IN THE SWORN STATEMENT/AFFIDAVIT, THE
APPREHENDING /SEIZING OFFICERS MUST STATE
THEIR COMPLIANCE WITH THE REQUIREMENT OF
SECTION 21((1) OF RA 9165
• IN CASE OF NON-OBSERVANCE OF THE PROVISION
THE APPREHENDING/SEIZING OFFICER MUST
STATE THE JUSTIFICATION OR EXPLANATION
THEREFOR AS WELL AS STEPS THEY HAVE
TAKEN IN ORDER TO PRESERVE THE INTEGRITY
AND EVIDENTIARY VALUE OF THE
SEIZED/CONFISCATED ITEMS
EFFECT OF NON COMPLIANCE WITH SEC.21
OR LACK VALID JUSTIFICATION
• IF THERE IS NO JUSTIFICATION OR
EXPLANATION EXPRESSELY DECLARED
IN THE SWORN STATEMENTS OR
AFFIDAVITS THE INVESTIGATING FISCAL
MUST NOT IMMEDIATELY FILE THE CASE
BEFORE THE COURT INSTEAD, HE OR SHE
MUST REFER THE CASE FOR FURTHER PI
IN ORDER TO DETERMINE THE (NON)
EXISTENCE OF PROBABLE CAUSE OR
EFFECT
• IF THE INVESTIGATING FISCAL FILED THE
CASE DESPITE SUCH ABSENCE THE
COURT MAY EXERCISE ITS DISCRETION TO
EITHER REFUSE TO ISSUE COMMITMENT
ORDER OR WARRANT OF ARREST OR
DISMISS THE CASE OUTRIGHT FOR LACK
OF PROBABLE CAUSE IN ACCORDANCE
WITH SECTION 5 RULE 112, RULES OF
COURT
ESTIPONA, JR V HON LOBRIGO
GR. NO.226679, 15 AUG. 2017
SECTION 23 OF RA 9165 WAS
DECLARED UNCONSTITUTIONAL FOR
BEING CONTRARY TO THE RULE-
MAKING AUTHORITY OF THE SUPREME
COURT.
SECTION 23 OF RA 9165 REFERS TO
PROHIBITION ON PLEA BARGAINING
RULE 116
ARRAIGNMENT AND PLEA
SECTION 2. PLEA OF GUILTY TO A LESSER OFFENSE.
— AT ARRAIGNMENT, THE ACCUSED, WITH THE
CONSENT OF THE OFFENDED PARTY AND THE
PROSECUTOR, MAY BE ALLOWED BY THE TRIAL
COURT TO PLEAD GUILTY TO A LESSER OFFENSE
WHICH IS NECESSARILY INCLUDED IN THE OFFENSE
CHARGED. AFTER ARRAIGNMENT BUT BEFORE
TRIAL, THE ACCUSED MAY STILL BE ALLOWED TO
PLEAD GUILTY TO SAID LESSER OFFENSE AFTER
WITHDRAWING HIS PLEA OF NOT GUILTY. NO
AMENDMENT OF THE COMPLAINT OR INFORMATION IS
NECESSARY. (SEC. 4, CIRC. 38-98)
PLEA BARGAINING UNDER DOJ
CIRCULAR NO. 027
• VIOLATION OF SECTION 5 (PAR.A)
ARTICLE II OF RA 9165 SALE,
TRADING ETC OF DANGEROUS DRUG
ALLOWED TO PLEA TO VIOLATION OF
SECTION 11 PROVIDED THE
QUANTITY OF SHABU IS LESS THAN
5GRAMS OR MARIJUANA LESS THAN
300 GRAMS
VIOLATION OF SECTION 7 ARTICLE II
OF RA 9165 VISITOR OF DRUG DEN,
ALLOWED TO PLEA BARGAIN TO
SECTION 12 (POSSESSION OF DRUG
PARAPHERNELIA) OR SECTION
15(USE OF DANGEROUS DRUGS) OF
THE SAME LAW
VIOLATION OF SECTION 11PAR. 2
(POSSESSION OF ILLEGAL
DRUGS)ARTICLE II RA 9165 AS
AMENDED BY RA 10640 (IF THE SEIZED
DRUGS ARE 5 GRAMS OR MORE BUT
DOES NOT EXCEED 10 GRAMS) OR
SEIZED MARIJUANA (300GRAMS TO
499 GRAMS)ALLOWED TO PLEA SECTION
11 PAR. 3 OF THE SAME LAW
VIOLATION OF SEC 12 (POSSESSION
OF EQUIPMENT, APPARATUS AND
OTHER DRUG PARAPHERNALIA)
ARTICLE II OF RA 9165 AS
AMENDED BY RA 10640, ALLOWED
TO PLEA TO VIOLATION OF SECTION
15 (USED) OF THE SAME LAW
THE END - THANK YOU
