RA 9165 (DDA)

Took effect on July 4, 2002 shown to be the same drugs seized from
Repealed RA 6425 the accused.

PENALTY — life imprisonment regardless

SEC. 5 SALE of the quantity or quality of the drug.
Sale, Trading, Administration,
Dispensation, Delivery, Distribution, SEC. 11 POSSESSION OF DRUGS
and Transportation
Possession of Dangerous Drugs

The crime of illegal sale, trading,

administration, dispensation, delivery, Illegal possession of drugs is committed
distribution and transportation of by any person, who, unless authorized by
dangerous drugs and/or controlled law, shall possess any dangerous drug
precursors and essential chemicals is
committed by any person, who, unless ELEMENTS:
authorized by law, shall sell, trade,
administer, dispense, deliver, give away to 1. The accused was in possession of
another, distribute dispatch in transit or
prohibited drug
transport (a) any dangerous drug,
including any and all species of opium
2. Such possession is not authorized
poppy regardless of the quantity and
purity involved, or shall act as a broker in by law
any of such transactions, or (b) any
3. The accused freely and consciously
controlled precursor and essential
chemical or shall act as a broker in such possessed the prohibited drug
transactions (Sec. 5, RA 9165).
Mere possession without legal authority is
punishable because it constitutes prima
To secure a conviction of illegal sale of facie evidence of knowledge or animus
dangerous drugs, the prosecution must possidendi.
establish the following elements:
What is Actual Possession?
(1) the identity of the buyer and the seller,
There is actual possession when the drugs
the object of the sale and its consideration;
is in the immediate possession or control of
and
the accused.
(2) the delivery of the thing sold and the
What is Constructive Possession?
payment therefor.
Constructive possession is when the drug is
➢ Meaning, it’s like a contract of sale under the dominion and control of the
— it’s just that the subject of the sale accused or when he has the right to
is illegal. exercise dominion or control over the place
where it is found.
★ What is important is that the sale
Ex.
transaction of drugs actually took place and
that the object of the transaction is properly ● You are renting your own house and
presented as evidence in court and is you are allowing others to stay in
RA 9165 (DDA)

one of the rooms. You have access

to that room — you can go inside What is Paraphernalia
and outside. If, let’s say, the police Tooter, aluminum foil, lighter, etc.
officers would go and raid your
house and they would find the drug
inside the drawer of the person
SEC. 13 POSSESSION OF DRUGS
you’re allowing to stay in your
DURING PARTIES
house, then that can be considered
as constructive possession. Possession of Dangerous Drugs
During Parties, Social Gatherings or
○ Kaya minsan yung mga
Meetings
lessor, impleaded sila as
party when it comes to drugs
Any person found possessing any
● Paano if nakita yung drug sa kotse?
dangerous drug during a party, or at a
Ikaw nagmamaneho, ikaw may ari or social gathering or meeting, or in the
whatever. Then that is also proximate company of at least two (2)
constructive possession. persons regardless of the quantity and
purity of such dangerous drugs.
○ Or may be considered as
actual possession because
It is the possession of drugs during parties
you have the immediate
or when in the company of at least two or
possession or control over
more persons.
the drug.

This is more properly known as “pot

session”.
RULES ON POSSESSION, SALE AND
USE OF PROHIBITED DRUGS AND
PARAPHERNALIA SEC. 14 POSSESSION OF
PARAPHERNALIA DURING PARTIES
SEC. 12 POSSESSION OF
PARAPHERNALIA Possession of Equipment, Instrument,
Apparatus and Other Paraphernalia for
Possession of Equipment, Instrument,
Dangerous Drugs During Parties,
Apparatus and Other Paraphernalia for
Social Gatherings or Meetings.
Dangerous Drugs

Any person, who shall possess or have

Illegal possession of drug paraphernalia is
under his/her control any equipment,
committed by any person, who, unless
instrument, apparatus and other
authorized by law, shall possess or have
paraphernalia fit or intended for smoking,
under his/her control any equipment,
consuming, administering, injecting,
instrument, apparatus and other
ingesting, or introducing any dangerous
paraphernalia fit or intended for smoking,
drug into the body, during parties, social
consuming, administering, injecting,
gatherings or meetings, or in the
ingesting, or introducing any dangerous
proximate company of at least two (2)
drug into the body (Sec. 12, RA 9165).
RA 9165 (DDA)

● Can he be charged of possession

persons.
because nasa possession niya yung
.001 gram na object ng sale?
It is the possession of paraphernalia during
parties or at least in the company of two ○ NO, because possession at
persons. that time is already absorbed
in sale.
The possession of equipments, instruments
or other paraphernalia for dangerous drugs ● If, let’s say, after niya mahuli during
are prima facie evidence that the possessor the entrapment, he was frisked and
has smoked, consumed, administer to aside from the sachet of .001 gram,
himself, ingested or used drugs and shall be nung finrisked siya, they were able
presumed to have violated Sec. 15. to find in his possession three more
sachets of shabu.
THE RULES:
○ So yung 3 more sachets ng
RULE 1: When the seller is apprehended, shabu will now be the subject
the quantity he is possessing must be of illegal possession. So he
equivalent or equal to that being sold by can now be charged with
him. Sec. 5 only with respect to
the .001 and for the three
★ Object of the sale must be other sachets which are not
equivalent to the amount that the the object of sale, then he
seller – that buyer is willing to sell. will be liable for illegal
possession.
★ The use or possession of the subject
of sale is absorbed already. ● Assuming there was no sale.
Kunwari nag checkpoint, meron
siyang nakitang in his possession –
Ex. drugs. And then, mandatory yun
● Let’s say, if the accused at the time sakanila – SOP – that he will
of the arrest was selling worth ₱500 undergo this urine test to determine
of shabu – so isang sachet yan, let’s whether he is a user and he is found
say .001 gram of shabu worth ₱500 to be positive for the use of shabu.
– ano yung object ng sale? Can he be charged with Section 15
which is using?
○ Yung object ng sale is yung
.001 gram which is ○ NO. The use is also
equivalent to the amount absorbed in Sec. 11. So the
being sold by him and liability of the accused will
equivalent to the amount that only be possession.
the buyer is willing to pay.
● The accused is found to be in
possession of paraphernalia or
RA 9165 (DDA)

instruments used for administering ○ The use of the dangerous

drugs. The accused will be charged drugs shall be a qualified
separately for Sec. 12 which is aggravating circumstance.
possession of paraphernalia.
CHARACTER OR NATURE OF RA 9165
● Kunwari gumamit siya ng pipe for It is malum prohibitum.
the use of opium. If he is found in
possession of pipe, and then at the ➔ Is there a difference between regulated
time he was being arrested and prohibited drugs?
ginagamit niya yun, he was using it.
What is the liability of the accused? ◆ Prohibited drugs per se, yan yung
mga shabu, marijuana, opium,
○ The liability of the accused is cocaine.
USE ONLY with possession
being absorbed. ◆ Regulated drugs are those you
cannot buy without a prescription.
● If, let’s say, nakitaan siya ng opium
pipe or ng tooter, tapos nakitaan din ● Ayan yung kailangan ng 3
siya ng sachet of shabu. What if at prescription ng doctor – 1 for
that time he was not using it. Ano the drugstore; 1 for the
ang liability niya? patient; and 1 for the doctor.

○ Dalawang offenses – Illegal There is no difference between regulated

possession of drugs and and prohibited drugs; there is no more
illegal possession of distinction – both are classified as
paraphernalia. dangerous and anyone in possession
thereof may be held liable.
● Kunwari ang charge niya is
possession of the three other Pagdating sa regulated drug, for as long as
sachets found in his possession you can produce your prescription, then
which were not subject of sale and pwede yun. Pag wala kang prescription,
then he tested positive for use of you’re a dead meat.
drugs.

○ The charge of use is already

CHAIN OF CUSTODY
absorbed in the charge of
possession. This should be discussed in the Rules on
Evidence.
● What would be the effect, assuming
that in the commission of the crime In our jurisdiction, we know that the accused
of murder, it was found out that the is convicted only when his guilt is
accused was found positive in the established beyond reasonable doubt. In
use drugs when he committed the criminal cases, you have to establish ALL
crime. Ano ang effect non? the essential elements because absent one
RA 9165 (DDA)

element then the accused cannot be the same degree of certitude as that
convicted of the crime charged. required in sustaining a conviction.

The courts are cognizant likewise of the The prosecution must be able to prove and
regularity in the performance of duties of account each link in the chain of custody of
public officers. There is always this the dangerous drugs. That is from the
presumption that the public officers moment of arrest and seizure until it was
performed their duties regularly. However, presented in court as proof of corpus delicti.
this presumption can be overturned, ● In short, the chain of custody
especially in drug cases – If evidence is requirement ensures that
presented to prove that they were not unnecessary doubts respecting the
properly performing their duty, or they were identity of the evidence are
inspired by any improper motive. minimized if not altogether removed.

It is actually a matter of judicial notice that What is this Chain of Custody?

buy-bust operations are susceptible to ● It means the duly recorded,
police abuse. The most notorious of which authorized movements and custody
is its use as a tool for extortion. of seized drugs or controlled
chemicals or plant sources of
The high possibility of abuse of the police dangerous drugs or laboratory
officers was primarily the reason why the equipment of each of each stage,
procedural safeguards was embodied in from the time of seizure/confiscation
Section 21. to receipt in the forensic laboratory
to safekeeping to presentation in
Section 21 of RA 9165 speaks of the Chain court for destruction.
of Custody. The safeguards that should be
observed by the police officers. Section 21 There are 4 links in the chain of custody
have been put up as a means to minimize if which must be established aside from the
not eradicate the abuse. evidence. In drugs you have to prove the
elements of the crime of sale or possession
What is the corpus delicti in dangerous but you also have to prove that the link was
drugs? unbroken.
● The drug itself.
○ Its identity and integrity must 4 links:
be definitely shown to have 1. It is the seizure and marking if
been preserved. practicable of illegal drugs recovered
from the accused by the
This means that on top of the elements of apprehending officer. (There is
possession or illegal sale or whatever safekeeping)
violation of the crime under RA 9165, the 2. The turnover of the illegal drugs
fact that the substance possessed or seized by the apprehending officer
illegally sold was the very substance to the investigating officer.
presented in court must be established with
RA 9165 (DDA)

3. Turn over by the investigating officer condition when it was seized from
of the drugs to the forensic chemist the accused.
for laboratory examination. ● Material: Same drug taken from the
4. The turn over and submission of the accused.
marked illegal drugs seized from the
forensic chemist to the court. Anything short of observance or compliance
by the arresting officers with the law
1st link required meant that they were not able to
What if the officer got it from the accused? regularly perform their duties.
There is an object of sale and object of ● Therefore, presumption of regularity,
possession? the performance of their duties
● The police officers must not becomes inapplicable as such, the
commingle the drugs seized. evidence of the state did not
● Or if they do not have a choice but to overturn the presumption of
commingle, they must have marked innocence in favor of the accused.
it .
○ Usually with their initials. A perfect chain of custody is not always the
● They should establish where you put standard because it is always impossible to
it at the time it was seized. obtain an unbroken chain of custody.
○ In my pocket (left or right)
It only becomes indispensable and essential
2nd link when the item evidence is not distinctive
● Before you give it to the investigating and not readily identifiable.
officer. Where were the drugs
placed? To whom did you turn over ● The corpus delicti is susceptible of
the illegal drugs? alteration, tampering, contamination
● He must be able to describe how he and substitution and exchange.
turned over the items, who received
the items and in what condition the In Section 21 there must be 3 insulating
investigating officer received the witnesses:
item. 1. Media
2. Representative from DOJ
3rd link 3. Any elected official.
● The investigating officer must
likewise be able to prove that the People vs Tomawis
drugs he received from the arresting The presence of the 3 witnesses must be
officer or seizing officer is still in the secured not only during inventory but more
same condition when he turned it importantly at the time of the warrantless
over to the forensic chemist. arrest.
● Who received it from the forensic
chemist. Why?
● Prosecution must be able to prove Because during the sale, entrapment,
that it was received in the same bypassed operation is a planned activity.
RA 9165 (DDA)

There is enough time for police officers to ● Because the penalty is life
secure the presence of the 3 witnesses. imprisonment. Therefore, probation
is not allowed.
People vs Tanes
The procedure to be followed to maintain
SEC. 23 PLEA-BARGAINING
the integrity of the confiscated drugs uses
PROVISION
evidence:
1. The seized items must be Any person charged under any
inventoried provision of this Act regardless of the
2. Photographed immediately after imposable penalty shall not be allowed
seizure or confiscation to avail of the provision on
3. The physical inventory and plea-bargaining.
photographing must be done in the
presence of
This particular provision was declared
a. The accused or his counsel,
unconstitutional and was clarified by the SC
b. An elected official
saying that:
c. Representative from the
● Plea-bargaining in drugs cases may
media
be allowed.
d. Representative from the DOJ
All of whom shall be required to sign
Reason for allowing:
the copies of the inventory and given
● Plea-bargaining is a rule of
a copy thereof.
procedure. And when it comes to
procedure, it is the SC who has the
Immediately after seizure or confiscation
exclusive jurisdiction.
● It means the physical inventory and
photographing of the drugs were
Plea-bargaining
intended by the law to be made
● It is a process whereby the accused
immediately after or at the base of
and the private complainant or the
apprehension.
prosecution workout a mutually
satisfactory disposition of the case
Nisperos vs people
for the court’s approval.
The requirement of the presence of the
● There is a give and take negotiation
insulating witnesses was made lenient. It
like when you enter into a
was already allowed to be made not only at
compromise agreement.
the place of arrest but at a place
● The essence of the agreement is
immediately near the vicinity.
that both of the prosecution and the
defense make concessions to avoid
The absence of the insulating witness must
potential losses.
be described or explained with certainty.

An accused has no constitutional right to

RA 9165
plea bargain. No basic rights are infringed
Probation is not allowed in case of
by trying him rather than accepting a plea of
importation, selling… why?
guilty.
● Redundant provision.
RA 9165 (DDA)

Plea bargaining is allowed during

arraignment, a trial or even up to the point
when prosecution already rested its case.

Because of these developments, the SC set

out certain guidelines.

You can plea guilty to a lower offense

provided that the elements are necessarily
included in the other offense such as
robbery you can plead guilty to a lower
offense of theft. Murder to homicide.
Frustrated homicide to serious physical
injuries. Provided that they fall in the same
title of the code.

Section 5, the accused can plead guilty to

Section 11 or 12.
● Selling pwede mag plead guilty to
possession of drugs or possession
of paraphernalia.

Additional conditions:
● Drug dependency evaluation and
● Rehabilitation in case he is found to
be positive for the use of drugs.