QUALIFIED

THEFT

QUALIFIED THEFT IS PENALIZED BY RECLUSION PERPETUA IF AMOUNT

INVOLVED
IS
OVER
P22,000.00
Under Article 309 of the Revised Penal Code, the maximum of the penalty for qualified theft is
prision mayor to reclusion temporal. However, under Article 310 of the Revised Penal Code, the
penalty for the crime shall be two (2) degrees higher than the specified in Article 309 of the
Code. Under Article 74 of the Revised Penal Code, the penalty higher by one degree than another
given penalty, and if such higher penalty is death, the penalty shall be reclusion perpetua of forty
(40) years with the accessory penalties of death under Article 40 of the Revised Penal Code. The
accused shall not be entitled to pardon before the lapse of forty (40) years. (People -vs- Fernando
Canales,
297
SCRA
667)
THE

PROBATION

LAW

PROBATION,

(P.D.

968)

ITS

AND

ITS

AMENDMENTS

MEANING

A disposition under which a defendant, after conviction and sentence, is subject to conditions
imposed by the Court and under the supervision of a probation officer.
PURPOSES

OF

PROBATION:

a. to promote the correction and rehabilitation of an offender by providing him with personalized
community
based
treatment;
b. to provide an opportunity for his reformation and reintegration into the community;
c.
to
prevent
the
commission
of
offenses.
SUBMISSION

OF

PETITION

AND

TIME

OF

FILING

OFPETITION

The petition or application for probation must be filed directly with the Court which sentenced
the accused within 15 days from date of promulgation of the decision convicting the accused, or
in short within the period to appeal otherwise the judgment shall become final and the accused
shall
be
deemed
to
have
waived
his
right
to
probation.
EFFECT

OF

FILING

OF

PETITION

FOR

PROBATION

Upon filing of petition for probation, the court shall suspend the execution of sentence.
Likewise, the filing of a petition for probation shall be deemed a waiver of the right to appeal

and in case an appeal is made immediately after conviction, a filing of petition for probation still
within the period to appeal, that is within fifteen days from date of promulgation shall be deemed
a
withdrawal
of
the
appeal.
PENDING RESOLUTION OF PETITION, WHAT ARE THE PRIVILEDGE THAT MAYBE
GIVEN
TO
THE
ACCUSED-PETITIONER?
1. if the accused, prior to the promulgation of decision of conviction is out on bail, he may be
allowed
on
temporary
liberty
under
his
bail
filed
in
said
case;
2. if he is under detention, upon motion, he may be allowed temporary liberty, if he cannot post a
bond,
on
recognizance of a responsible member of a community who shall guarantee his appearance
whenever
required
by
the
court.
IN CASE THE APPLICANT FOR PROBATION CANNOT BE PRODUCED BY THE
CUSTODIAN
ON
RECOGNIZANCE,
WHAT
HAPPENS?
The custodian must be asked to explain why he should not be cited for contempt for failing to
produce the probationer when required by the court; Summary hearing will be held for indirect
contempt, and if custodian cannot produce the petitioner, nor to explain his failure to produce the
petitioner, the custodian on recognizance shall be held in contempt of court.
WHAT

IS

POST

SENTENCE

INVESTIGATION

REPORT?

It is a report of the Parole and Probation Officer after conducting post sentence investigation and
interviews containing the circumstances surrounding the offense for which the petitioner was
convicted. The findings should be drawn from the court records, police records, statement of
defendants, the aggrieved party and other persons who may know the petitioner and all other
matters
material
to
the
petition.
It will also include the psychological and social information regarding the probationer;
evaluation of the petitioner; suitability for probation; his potential for rehabilitation; and may
include the program for supervision and suggested terms of conditions of probation and a
recommendation
either
to
deny
or
grant
the
probation.
WHAT

ARE

THE

MANDATORY

CONDITIONS

OF

PROBATION?

a. To present himself to the probation officer concerned for supervision within 72 hours from
receipt
of
said
order
and
b. to report to the probation officer at least once a month during the period of probation.
WHAT

ARE

THE

OTHER

CONDITIONS

OF

PROBATION?

a.
cooperate
with
a
program
of
supervision;
b.
meet
his
family
responsibilities;
c. devote himself to a specific employment and not to charge said employment without prior
written
approval
of
the
probation
officer;
d. comply with a program of payment of civil liability to the victim of his heirs;
e. undergo medical, psychological or psychiatric examination and treatment and/or enter and
remain
in
a
specific
institution,
when
required
for
that
purposes;
f.
pursue
a
prescribed
secular
study
or
vocational
training;
g. attend or reside in a facility established for instruction or recreation of persons on probation;
h.
refrain
from
visiting
houses
of
ill-repute;
i.
abstain
from
drinking
intoxicating
beverages
to
excess;
j. permit the probation officer or an authorized social worker to visit his home and place of work;
k. reside at premises approved by the court and not to change his residence w/o prior written
approval;
and
l. satisfy any other condition related to the rehabilitation of the probationer and not unduly
restrictive
of
his
liberty
or
incompatible
with
his
freedom
of
conscience.
m.
plant
trees
(
see
circular
of
the
SC
)
RULES

ON

OUTSIDE

TRAVEL

OF

PROBATIONER

A probationer who desires to travel outside the jurisdiction of the city or provincial probation
officer for not more than 30 days, the permission of the parole and probation officer must be
sought. If for more than thirty (30) days, aside from the permission of the parole and probation
officer,
the
permission
of
the
court
must
likewise
be
sought.
EFFECT

OF

APPEAL

BY

THE

ACCUSED

OF

HIS

CONVICTION

a. If the accused appeals his conviction for the purpose of totally reversing his conviction, he is
deemed
to
have
waived
his
right
to
probation.
b. The rule that if the accused appeals his conviction only with respect to the penalty, as he
believes the penalty is excessive or wrong, as the penalty is probationable, and the appellate
court sustains the accused may still apply for probation, has already been abandoned. An appeal
therefore, irrespective of its purpose, to overturn the entire decision or only with respect to
penalty is a waiver to probation, has already been abandoned. An appeal therefore, irrespective
of its purpose, to overturn the entire decision or only with respect to penalty is a waiver to
probation.
CONFIDENTIALITY

OF

RECORDS

OF

PROBATION

The investigation report and the supervision and history of a probationer obtained under PD No.

968 and under these rules shall be privileged and shall not be disclosed directly or indirectly to
anyone other than the probation administration or the court concerned the court which granted
the probation or where the probation was transferred may allow the probationer to inspect the
aforesaid documents or his lawyer, whenever such disclosure may be desirable or helpful to
them.
Any government office may ask for the records of probation from the court for its official use or
from
the
administrator.
Sec. 29, PD 968: VIOLATION OF CONFIDENTIAL NATURE OF PROBATION RECORDS.
The penalty of imprisonment ranging from six months and one day to six years and a fine
ranging from hundred to six thousand pesos shall be imposed upon any person who violates
Section
17
hereof.
MODIFICATION

OF

CONDITION

OR

PERIOD

OF

PROBATION

The court, on motion, or motu propio may modify the conditions of probation or modify the
period
of
probation
as
circumstances
may
warrant.
WHO

ARE

DISQUALIFIED

TO

UNDERGO

PROBATION

1. Those sentenced to serve a maximum term of imprisonment of more than six years.
2. Those convicted of any offense against the security of the state;
3. Those who have been previously convicted by final judgment of an offense punished by
imprisonment of not less than one moth and one day and/or a fine of not less than P200.00;
4. Those who have been once on probation under the provisions of this decree.
5.
Those
convicted
of
RA
9156.
6.
Those
convicted
of
violation
of
election
laws.
PERIOD

OF

PROBATION

1. If the probationer has been sentenced to an imprisonment of not more than one year, the
probation
shall
not
exceed
two
years;
2.
In
all
other
cases,
not
to
exceed
six
years;
3. In case the penalty is fine, the probation shall not be less than the period of subsidiary
imprisonment
nor
more
than
twice
of
the
subsidiary
imprisonment.
AMENDMENT

TO

SECTION

OF

PD

968:

"Sec. 4. Grant of Probation. - Subject to the provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant, and upon application by said defendant within
the period for perfecting an appeal, suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms and conditions as it may deem best;
Provided, That no application for probation shall be entertained or granted if the defendant has
perfected
the
appeal
from
the
judgment
of
conviction.

"Probation may be granted whether the sentence imposes a term of imprisonment or a fine only.
An application for probation shall be filed with the trial court. The filing of the application shall
be
deemed
a
waiver
of
the
right
to
appeal.
"An

order

granting

or

denying

probation

shall

not

be

appealable."

Thus, a person who was sentenced to destierro cannot apply for probation. Reason: it does not
involved
imprisonment
or
fine.
(PD
1990)
JURISPRUDENCE
UNDERLYING

PHILOSOPHY

OF

PROBATION

The underlying philosophy of probation is indeed one of liberality towards the accused. It is not
served by a harsh and stringent interpretation of the statutory provisions. Probation is a major
step taken by our Government towards the deterrence and minimizing of crime and the
humanization of criminal justice. In line with the public policy behind probation, the right of
appeal should not be irrevocably lost from the moment a convicted accused files an application
for probation. Appeal and probation spring from the same policy considerations of justice,
humanity,
and
compassion.
(Yusi
v
Morales,
4/28/83)
PROBATION

IS

NOT

RIGHT

BUT

PRIVILEGE

Probation is a mere privilege and its grant rests solely upon the discretion of the court. As aptly
noted in U.S. vs. Durken, this discretion is to be exercised primarily for the benefit of organized
society and only incidentally for the benefit of the accused. (Tolentino v. Alconcel, G.R. No.
63400, 3/18/83). Even if a convicted person is not included in the list of offenders disqualified
from the benefits of a decree, the grant of probation is nevertheless not automatic or ministerial,
(Pablo Bernardo v. Balagot, 215 SCRA 526) therefore a petition for probation may be denied by
the
Court.
MAIN CRITERION FOR DETERMINING WHO MAY BE GRANTED PROBATION.
The main criterion laid down by the Probation law in determining who may be granted probation
is based on the penalty imposed and not on the nature of the crime. By the relative lightness of
the offense, as measured by the penalty imposed, more than by its nature, as the law so ordains
the offender is not such a serious menace to society as to be wrested away therefrom, as the more
dangerous type of criminals should be. Hence, in the case at bar, the first reason given by the
respondent judge for his denial of the petition for probation that, "probation will depreciate the
seriousness of the offense committed" would thus be writing into the law a new ground for
disqualifying a first-offender from the benefits of probation. (Santos v. Cruz-Pano, 1/17/83)

TIMELINESS

OF

FILING

APPLICATION

FOR

PROBATION

The accused must file a Petition for Probation within the period for appeal. If the decision of
conviction has become final and executory, the accused is barred from filing a Petition for
Probation
(Pablo
Francisco
v.
C.A.,
4/6/95).
ORDER

DENYING

PROBATION

NOT

APPEALABLE,

REMEDY

CERTIORARI

Although an order denying probation is not appealable, the accused may file a motion for
Certiorari from said order (Heirs of Francisco Abueg v. C.A., 219 SCRA 78)
EFFECT OF FILING PETITION FOR PROBATION, WAIVER OF RIGHT TO APPEAL AND
FINALITY
OF
JUDGEMENT
A judgment of conviction becomes final when the accused files a petition for probation.
However, the judgement is not executory until the petition for probation is resolved. The filing of
the petition for probation is a waiver by the accused of his right to appeal the judgement of
conviction
(Heirs
of
Francisco
Abueg
v.
C.A.,
supra).
MULTIPLE CONVICTIONS IN SEVERAL CASES PROBATIONABLE IF PENALTY FOR
EACH
CONVICTION
IS
PROBATIONABLE
." Evidently, the law does not intend to sum up the penalties imposed but to take each penalty,
separately and distinctly with the others. Consequently, even if petitioner was supposed to have
served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of
prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each
crime committed on each date of each case, as alleged in the information(s)," and in each of the
four (4) informations, he was charged with having defamed the four (4) private complainants on
four (4) different, separate days, he was still eligible for probation, as each prison term imposed
on
petitioner
was
probationable.
(Francisco
v.
CA;
4/16/95)
REASON FOR FIXING CUT OFF POINT AT A MAXIMUM OF SIX YEARS
IMPRISONMENT
FOR
PROBATION.
Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based
on the assumption that those sentenced to higher penalties pose too great a risk to society, not
just because of their demonstrated capability for serious wrongdoing but because of the gravity
and serious consequences of the offense they might further commit. The Probation Law, as
amended, disqualifies only those who have been convicted of grave felonies as defined in Art. 9
in relation to Art. 25 of The Revised Penal Code, and not necessarily those who have been

convicted of multiple offenses in a single proceeding who are deemed to be less perverse. Hence,
the basis of the disqualification is principally the gravity of the offense committed and the
concomitant degree of penalty imposed. Those sentenced to a maximum term not exceeding six
(6) years are not generally considered callous, hard core criminals, and thus may avail of
probation
VIOLATION OF RA 6425, A VALID CAUSE FOR DISMISSAL IN SERVICE IN THE
GOVERNMENT
DESPITE
PROBATION
Drug-pushing, as a crime, has been variously condemned as "an especially vicious crime," "one
of the most pernicious evils that has ever crept into our society." For those who become addicted
to it "not only slide into the ranks of the living dead, what is worse, they become a grave menace
to the safety of law-abiding members of society," while "peddlers of drugs are actually agents of
destruction. The deserve no less than the maximum penalty [of death]."
There is no doubt that drug-pushing is a crime which involves moral turpitude and implies
"every thing which is done contrary to justice, honesty, modesty or good morals" including "acts
of baseness, vileness, or depravity in the private and social duties which a man owes to his
fellowmen or to society in general, contrary to the accepted rule of right and duty between man
and man." Indeed nothing is more depraved than for anyone to be a merchant of death by selling
prohibited drugs, an act which, as this Court said in one case,"often breeds other crimes. It is not
what we might call a 'contained' crime whose consequences are limited to that crime alone, like
swindling and bigamy. Court and police records show that a significant number of murders,
rapes, and similar offenses have been committed by persons under the influence of dangerous
drugs, or while they are 'high.' While spreading such drugs, the drug-pusher is also abetting,
through his agreed and irresponsibility, the commission of other crimes." The image of the
judiciary is tarnished by conduct, which involves moral turpitude. While indeed the purpose of
the Probation Law (P.D. No. 968, as amended) is to save valuable human material, it must not be
forgotten that unlike pardon probation does not obliterate the crime of which the person under
probation has been convicted. The reform and rehabilitation of the probationer cannot justify his
retention in the government service. He may seek to reenter government service, but only after
he has shown that he is fit to serve once again. It cannot be repeated too often that a public office
is a public trust, which demands of those in its service the highest degree of morality. (OCA v.
Librado
260
SCRA
624,
8/22/96)
PETITIONER MAY STILL EXHORT OFFENDER TO PERFORM CERTAIN ACTS DESPITE
DISCHARGE
FROM
PROBATION
IN
CERTAIN
CASES
Petitioner Arthur M. Cuevas, Jr.'s discharge from probation without any infraction of the
attendant conditions therefor and the various certifications attesting to his righteous, peaceful and
civic-oriented character prove that he has taken decisive steps to purge himself of his deficiency
in moral character and atone for the unfortunate death of Raul I. Camaligan. The Court is
prepared to give him the benefit of the doubt, taking judicial notice of the general tendency of the
youth to be rash, temerarious and uncalculating. Let it be stressed to herein petitioner that the

lawyer's oath is not a mere formality recited for a few minutes in the glare of flashing cameras
and before the presence of select witnesses. Petitioner is exhorted to conduct himself beyond
reproach at all times and to live strictly according to his oath and the Code of Professional
Responsibility. And, to paraphrase Mr. Justice Padilla's comment in the sister case of Re: Petition
of Al Argosino To Take The Lawyer's Oath, Bar Matter No. 712, March 19, 1997, "[t]he Court
sincerely hopes that" Mr. Cuevas, Jr., "will continue with the assistance he has been giving to his
community. As a lawyer he will now be in a better position to render legal and other services to
the more unfortunate members of society". (In Re: Cuevas, Jr.; 1/27/98)
EXPIRATION OF PERIOD OF PROBATION IS NOT TERMINATION, ORDER OF COURT
REQUIRED
The mere expiration of the period for probation does not, ipso facto, terminate the probation.
Probation is not co-terminus with its period, there must be an order from the Court of final
discharge, terminating the probation. If the accused violates the condition of the probation before
the issuance of said order, the probation may be revoked by the Court (Manuel Bala v. Martinez,
181
SCRA
459).

ANTI-FENCING
OF

1979

(PD

LAW
1612)

NO.

DEFINITION
Fencing as defined in Sec. 2 of PD No. 1612 (Anti-Fencing Law) is the act of any person who,
with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal,
sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or
anything of value which he knows or should be known to him, or to have been derived from the
proceeds of the crime of robbery or theft. (Dizon-Pamintuan vs. People, GR 111426, 11 July 94).
BRIEF

HISTORY

OF

PD

1612

OR

THE

ANTI-FENCING

LAW

Presidential Decree No. 1612 or commonly known as the Anti-Fencing Law of 1979 was enacted
under the authority of therein President Ferdinand Marcos. The law took effect on March 2,
1979. The Implementing Rules and Regulations of the Anti-Fencing Law were subsequently
formulated
and
it
took
effect
on
June
15,
1979.
THE

PURPOSE

OF

ENACTING

PD

1612

The Anti-Fencing Law was made to curtail and put an end to the rampant robbery of government
and private properties. With the existence of "ready buyers", the "business" of robbing and
stealing have become profitable. Hence, a law was enacted to also punish those who buy stolen
properties. For if there are no buyers then the malefactors could not profit from their wrong

doings.
WHAT

IS

FENCING

LAW

AND

HOW

IT

CAN

BE

COMMITTED

"Fencing" is the act of any person who, with intent to gain for himself or for another, shall buy
receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any other
manner deal in any article, item, object or anything of value which he knows, or should be
known to him, to have been derived from the proceeds of the crime of robbery or theft. A
"Fence" includes any person, firm, association corporation or partnership or other organization
who/
which
commits
the
act
of
fencing.
WHO ARE LIABLE FOR THE CRIME OF FENCING; AND ITS PENALTIES:
The person liable is the one buying, keeping, concealing and selling the stolen items. If the fence
is a corporation, partnership, association or firm, the one liable is the president or the manager or
the officer who knows or should have know the fact that the offense was committed.
The law provide for penalty range for persons convicted of the crime of fencing. Their penalty
depends
on
the
value
of
the
goods
or
items
stolen
or
bought:
a. The penalty of prision mayor, if the value of the property involved is more than 12,000 pesos
but not exceeding 22,000 pesos; if the value of such property exceeds the latter sum, the penalty
provided in this paragraph shall be imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may be imposed shall not exceed twenty
years. In such cases, the penalty shall be termed reclusion temporal and the accessory penalty
pertaining thereto provided in the Revised Penal Code shall also be imposed.
b. The penalty of prision correccional in its medium and maximum periods, if the value of the
property robbed or stolen is more than 6,000 pesos but not exceeding 12, 000 pesos;
c. The penalty of prision correccional in its minimum and medium periods, if the value of the
property involved is more than 200 pesos but not exceeding 6,000 pesos;
d. The penalty of arresto mayor in its medium period to prision correccional in its minimum
period, if the value of the property involved is over 50 but not exceeding 200 pesos;
e. The penalty of arresto mayor in its medium period if such value is over five (5) pesos but not
exceeding
50
pesos.
f. The penalty of arresto mayor in its minimum period if such value does not exceed 5 pesos.
RULES REGARDING BUY AND SELL OF GOODS PARTICULARLY SECOND HAND
GOODS

The law requires the establishment engaged in the buy and sell of goods to obtain a clearance or
permit to sell "used second hand items", to give effect to the purpose of the law in putting an end
to buying and selling stolen items. Failure of which makes the owner or manager liable as a
fence.
The Implementing Rules provides for the guidelines of issuance of clearances or permits to sell
used or secondhand items. It provided for the definition of the following terms:
1. "Used secondhand article" shall refer to any goods, article, items, object or anything of value
obtained from an unlicensed dealer or supplier, regardless of whether the same has actually or in
fact
been
used.
2. "Unlicensed dealer/supplier" shall refer to any persons, partnership, firm, corporation,
association or any other entity or establishment not licensed by the government to engage in the
business of dealing in or of supplying the articles defined in the preceding paragraph;
3. "Store", "establishment" or "entity" shall be construed to include any individual dealing in the
buying and selling used secondhand articles, as defined in paragraph hereof;
4. "Buy and Sell" refer to the transaction whereby one purchases used secondhand articles for the
purpose
of
resale
to
third
persons;
5. "Station Commander" shall refer to the Station Commander of the Integrated National Police
within the territorial limits of the town or city district where the store, establishment or entity
dealing in the buying and selling of used secondhand articles is located.
PROCEDURE

FOR

SECURING

PERMIT/CLEARANCE

The Implementing Rules provided for the method of obtaining clearance or permit. No fee will
be charged for the issuance of the clearance/permit. Failure to secure clearance/permit shall be
punished as a fence, that may result to the cancellation of business license.
1. The Station Commander shall require the owner of a store or the President, manager or
responsible officer in having in stock used secondhand articles, to submit an initial affidavit
within thirty (30) days from receipt of notice for the purpose thereof and subsequent affidavits
once every fifteen (15) days within five (5) days after the period covered, which shall contain:
a. complete inventory of such articles including the names and addresses from whom the articles
were
acquired.
b. Full list of articles to be sold or offered for sale including the time and place of sale
c.
Place
where
the
articles
are
presently
deposited.
The Station Commander may, require the submission of an affidavit accompanied by other
documents
showing
proof
of
legitimacy
of
acquisition.
2. Those who wish to secure the permit/clearance, shall file an application with the Station

Commander
concerned,
which
states:
a.
name,
address
and
other
pertinent
circumstances
b. article to be sold or offered for sale to the public and the name and address of the unlicensed
dealer
or
supplier
from
whom
such
article
was
acquired.
c. Include the receipt or document showing proof of legitimacy of acquisition.
3. The Station Commander shall examine the documents attached to the application and may
require the presentation of other additional documents, if necessary, to show satisfactory proof of
the legitimacy of acquisition of the article, subject to the following conditions:
a. if the Station Commander is not satisfied with the proof of legitimacy of acquisition, he shall
cause the publication of the notice, at the expense of the one seeking clearance/permit, in a
newspaper
of
general
circulation
for
two
consecutive
days,
stating:
>
articles
acquired
from
unlicensed
dealer
or
supplier
> the names and addresses of the persons from whom they were acquired
> that such articles are to be sold or offered for sale to the public at the address of the store,
establishment
or
other
entity
seeking
the
clearance/permit.
4. If there are no newspapers in general circulation, the party seeking the clearance/permit shall,
post a notice daily for one week on the bulletin board of the municipal building of the town
where the store, firm, establishment or entity is located or, in the case of an individual, where the
articles
in
his
possession
are
to
be
sold
or
offered
for
sale.
5. If after 15 days, upon expiration of the period of publication or of the notice, no claim is made
to any of the articles enumerated in the notice, the Station Commander shall issue the clearance
or
permit
sought.
6. If before expiration of the same period for the publication of the notice or its posting, it shall
appear that any of the articles in question is stolen property, the Station Commander shall hold
the article in restraint as evidence in any appropriate case to be filed.
Articles held in restraint shall kept and disposed of as the circumstances of each case permit. In
any case it shall be the duty of the Station Commander concerned to advise/notify the
Commission on Audit of the case and comply with such procedure as may be proper under
applicable
existing
laws,
rules
and
regulations.
7. The Station Commander shall, within seventy-two (72) hours from receipt of the application,
act thereon by either issuing the clearance/permit requested or denying the same. Denial of an
application shall be in writing and shall state in brief the reason/s thereof.
8. Any party not satisfied with the decision of the Station Commander may appeal the same
within 10 days to the proper INP (now PNP) District Superintendent and further to the INP (now
PNP) Director. The decision of the Director can still be appealed top the Director-General, within
10 days, whose decision may be appealed with the Minister (now Secretary) of National
Defense,
within
15
days,
which
decision
is
final.
PRESUMPTION
Mere possession of any good, article, item, object or anything fo value which has been the
subject of robbery or thievery, shall be prima facie evidence of fencing.
ELEMENTS

1.
A
crime
of
robbery
or
theft
has
been
committed;
2. The accused, who is not a principal or accomplice in the commission of the crime of robbery
or theft, buys, receives, possess, keeps, acquires, conceals, sells, or disposes, or buys and sells, or
in any manner deals in any article, item, object or anything of value, which has been derived
from
the
proceeds
of
the
said
crime;
3. The accused knows or should have known that the said article, item, or object or anything of
value has been derived from the proceeds of the crime of robbery or theft; and
4. There is, on the part of the accused, intent to gain for himself or for another. (Dizon-Pamintuan
vs
People,
GR
111426,
11
July
94)
As regards the first element, the crime of robbery or theft should have been committed before
crime of fencing can be committed. The person committing the crime of robbery or theft, may or
may not be the same person committing the crime of fencing. As in the case of D.M. Consunji,
Inc., vs. Esguerra, quantities of phelonic plywood were stolen and the Court held that qualified
theft had been committed. In People vs. Lucero there was first a snatching incident, where the
bag of Mrs. Maripaz Bernard Ramolete was snatch in the public market of Carbon, Cebu City,
where she lost a Chinese Gold Necklace and pendant worth some P4,000.00 to snatchers Manuel
Elardo and Zacarias Pateras. The snatchers sold the items to Manuel Lucero. Consequently,
Lucero was charged with violation of the Anti-Fencing Law. However, in this case, no
eyewitness pointed to Lucero as the perpetrator and the evidence of the prosecution was not
strong
enough
to
convict
him.
The second element speaks of the overt act of keeping, buying, receiving, possessing, acquiring,
concealing, selling or disposing or in any manner deals with stolen items. It is thus illustrated in
the case of Lim vs. Court of Appeals, where the accused, Juanito Lim stored and kept in his
bodega and subsequently bought or disposed of the nine (9) pieces of stolen tires with rims
owned
by
Loui
Anton
Bond.
The accused known or should have known that the goods were stolen. As pointed out in the case
of People vs. Adriatico, the court in convicting Norma Adriatico, stated that it was impossible for
her to know that the jewelry were stolen because of the fact that Crisilita was willing to part with
a considerable number of jewelry at measly sum, and this should have apprised Norma of the
possibility that they were stolen goods. The approximate total value of the jewelry were held to
be at P20,000.00, and Norma having bought it from Crisilita for only P2,700. The court also
considered the fact that Norma engage in the business of buying and selling gold and silver,
which business is very well exposed to the practice of fencing. This requires more than ordinary
case and caution in dealing with customers. As noted by the trial court:
". . . the Court is not inclined to accept the accused's theory of buying in good faith and
disclaimer of ever seeing, much more, buying the other articles. Human experience belies her
allegations as no businessman or woman at that, would let go of such opportunities for a clean
profit
at
the
expense
of
innocent
owners.
The Court in convicting Ernesto Dunlao Sr., noted that the stolen articles composed of farrowing
crates and G.I. pipes were found displayed on petitioner's shelves inside his compound.
(Dunalao,
Sr.
v.
CA,
08/22/96)

In the case of People v. Muere (G.R.12902, 10/18/94), the third element was not proven. This
case involves the selling of alleged stolen Kenwood Stereo Unit in the store Danvir Trading,
owned by the spouses Muere. The store is engaged in buying and selling of second hand
merchandise located at Pasay Road, Makati. The said stereo was bought from Wynn's Audio, an
existing establishment. The court held that there is no proof that the spouses Muere, had
knowledge of the fact that the stereo was stolen. The spouses Muere purchased the stereo from a
known merchant and the unit is displayed for sale in their store. These actions are not indicative
of
a
conduct
of
a
guilty
person.
On the same vein, the third element did not exist in the case of D.M. Consunji, Inc. (Consunji v.
Esguerra, 07/30/96) where the subject of the court action are the alleged stolen phelonic plywood
owned by D.M. Consunji, Inc., later found to be in the premises of MC Industrial Sales and
Seato trading Company, owned respectively by Eduardo Ching and the spouses Sy. Respondents
presented sales receipts covering their purchase of the items from Paramount Industrial, which is
a known hardware store in Caloocan, thus they had no reason to suspect that the said items were
products
of
theft.
The last element is that there is intent to gain for himself or for another. However, intent to gain
need not be proven in crimes punishable by a special law such as the Anti-Fencing Law. The
crimes punishable by special laws are called "acts mala prohibita". The rule on the subject is that
in acts mala prohibita, the only inquiry is that, has the law been violated? (in Gatdner v. People,
as cited in US v. Go Chico, 14 Phils. 134) When the act is prohibited by law, intent is immaterial.
Likewise, dolo or deceit is immaterial in crimes punishable by special statute like the AntiFencing Law. It is the act itself which constitutes the offense and not the motive or intent. Intent
to gain is a mental state, the existence if which is demonstrated by the overt acts of the person.
The mental state is presumed from the commission of an unlawful act. (Dunlao v. CA) again,
intent to gain is a mental state, the existence of which is demonstrated by the overt acts of
person,
as
the
keeping
of
stolen
items
for
subsequent
selling.
A

FENCE

MAY

BE

PROSECUTED

UNDER

THE

RPC

OR

PD

1612

The state may thus choose to prosecute him either under the RPC or PD NO. 1612 although the
preference for the latter would seem inevitable considering that fencing is a malum prohibitum,
and PD No. 1612 creates a presumption of fencing and prescribes a higher penalty based on the
value
of
the
property.
(supra)
MERE POSSESSION OF STOLEN ARTICLE PRIMA FACIE EVIDENCE OF FENCING
Since Sec. 5 of PD NO. 1612 expressly provides that mere possession of any good, article, item,
object or anything of value which has been the subject of robbery or thievery shall be prima facie
evidence of fencing it follows that the accused is presumed to have knowledge of the fact that
the items found in her possession were the proceeds of robbery or theft. The presumption does
not offend the presumption of innocence enshrined in the fundamental law.

DISTINCTION

BETWEEN

FENCING

AND

ROBBERY

The law on fencing does not require the accused to have participation in the criminal design to
commit or to have been in any wise involved in the commission of the crime of robbery or theft.
Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can
be
consummated.
(People
v
De
Guzman,
GR
77368).
Robbery is the taking of personal property belonging to another, with intent to gain, by means of
violence against or intimidation of any person, or using force upon anything.
On the other hand, fencing is the act of any person who, with intent to gain for himself or for
another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and
sell, or in any other manner deal in any article, item, object or anything of value which he knows,
or shall be known to him, to have been derived from the proceeds of the crime of robbery or
theft.
FENCING

AS

CRIME

INVOLVING

MORAL

TURPITUDE.

In violation of the Anti-Fencing Law, actual knowledge by the "fence" of the fact that property
received is stolen displays the same degree of malicious deprivation of one's rightful property as
that which animated the robbery or theft which by their very nature are crimes of moral
turpitude.
(Dela
Torre
v.
COMELEC
07/05/96)
Moral turpitude can be derived from the third element - accused knows or should have known
that the items were stolen. Participation of each felon, one being the robber or the thief or the
actual perpetrators, and the other as the fence, differs in point in time and degree but both
invaded one's peaceful dominion for gain. (Supra) Both crimes negated the principle of each
person's duty to his fellowmen not to appropriate things that they do not own or return something
acquired by mistake or with malice. This signifies moral turpitude with moral unfitness.
In the case of Dela Torre, he was declared disqualified from running the position of Mayor in
Cavinti, Laguna in the last May 8, 1995 elections because of the fact of the disqualification under
Sec. 40 of the Local Government Code, of persons running for elective position -"Sec. 40
Disqualifications - (a) Those sentenced by final judgement for an offense involving moral
turpitude..."
Dela Torre was disqualified because of his prior conviction of the crime of fencing wherein he
admitted
all
the
elements
of
the
crime
of
fencing.
ESSENCE

OF

VIOLATION

OF

PD

1612,

SEC.

OR

ANTI-FENCING

PD 1612, Section 2 thereof requires that the offender buys or otherwise acquires and then sells or

disposes of any object of value which he knows or should he known to him to have been derived
from the proceeds of the crime of robbery or theft. (Caoili v CA; GR 128369, 12/22/97)
PROOF OF PURCHASE WHEN GOODS ARE IN POSSESSION OF OFFENDER NOT
NECESSARY
IN
ANTI-FENCING
The law does not require proof of purchase of the stolen articles by petitioner, as mere possession
thereof
is
enough
to
give
rise
to
a
presumption
of
fencing.
It was incumbent upon petitioner to overthrow this presumption by sufficient and convincing
evidence.
(Caoili
v.
CA;
GR
128369,
12/22/97)
BATAS
BOUNCING

PAMBANSA

BLG.

22
LAW

CHECKS

ACTS

PUNISHABLE:

a. any person who makes or draws and issues any check to apply on account or for value,
knowing at the time of issue that he does not have sufficient funds in or credit with the drawee
bank, for the payment of such check in full upon its presentment, which check is subsequently
dishonored by the drawee bank for insufficiency of funds, or credit, or would have been
dishonored for the same reason had not the drawee, without any valid reason, ordered the bank to
stop
payment.
b. Any person who having sufficient funds in or credit with the drawee bank when he makes or
draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the
full amount of the check if presented within a period of ninety days from date appearing thereon,
for
which
reason,
it
is
dishonored
by
the
drawee
bank.
HOW

TO

ESTABLISH

GUILT

OF

ACCUSED

IN

BP

22

To establish her guilt, it is indispensable that the checks she issued for which she was
subsequently charged, be offered in evidence because the gravamen of the offense charged is the
act of knowingly issuing a check with insufficient funds. Clearly, it was error to convict
complainant on the basis of her letter alone. Nevertheless, despite this incorrect interpretation of
a rule on evidence, we do not find the same as sufficiently constitutive of the charges of gross
ignorance of the law and of knowingly rendering an unjust decision. Rather, it is at most an error
in judgment, for which, as a general rule, he cannot be held administratively liable. In this
regard, we reiterate the prevailing rule in our jurisdiction as established by current jurisprudence.
(Gutierrez
v
Pallatao;
8/8/98)
NOTICE,

AN

INDISPENSABLE

REQUISITE

FOR

PROSECUTION

Section 3 of BP 22 requires that the holder of the check or the drawee bank, must notify the
drawer of the check that the same was dishonored, if the same is presented within ninety days
from date of issuance, and upon notice the drawer has five days within which to make
arrangements for the payment of the check or pay the same in full.
DUTY

OF

THE

DRAWEE

BANK

The drawee bank has the duty to cause to be written, printed or stamped in plain language
thereon, or attached thereto the reason for the drawees dishonor or refusal to pay the same. If the
drawee bank fails to do so, prosecution for violation of BP 22 may not prosper.
RULE

IN

CASE

OF

DISHONOR

DUE

TO

STOP

PAYMENT

The drawee bank has not only the duty to indicate that the drawer stopped the payment and the
reason for the stop payment. The drawee bank is further obligated to state whether the drawer of
the
check
has
sufficient
funds
in
the
bank
or
not.
AGREEMENT OF PARTIES REGARDING THE CHECK IS NOT A DEFENSE
In the case of People vs Nitafan, 215 SCRA, the agreement of the parties in respect to the
issuance of the check is inconsequential or will not affect the violation of BP 22, if the check is
presented to the bank and the same was dishonored due to insufficiency of funds.
CHECKS

ISSUED

IN

PAYMENT

OF

INSTALLMENT

Checks issued in payment for installment covered by promissory note and said checks bounced,
the drawer is liable if the checks were drawn against insufficient funds, especially that the
drawer, upon signing of the promissory note, closed his account. Said check is still with
consideration.
(Caram
Resources
v.
Contreras)
In

this

CHECK

case,
DRAWN

the

Judge
AGAINST

was

even
A

held

DOLLAR

administratively

liable.

ACCOUNT.

RULE:

A check drawn against a dollar account in a foreign country is still violative of the provisions of
BP 22 so long as the check is issued, delivered or uttered in the Philippines, even if the same is
payable
outside
of
the
Philippines
(De
Villa
v.
CA)
GUARANTEE

CHECKS,

DRAWER,

STILL

LIABLE

The mere act of issuing a worthless check is punishable. Offender cannot claim good faith for it

is

malum

prohibitum.

In the case of Magno vs CA, when accused issued a check as warranty deposit for lease of
certain equipment, even knowing that he has no funds or insufficient funds in the bank is not
liable, if the lessor of the equipment pulled out the loaned equipment. The drawer has no
obligation to make good the check because there is no more deposit to guaranty.
ISSUANCE OF GUARANTEE CHECKS WHICH WAS DISHONORED IN VIOLATION AND
PURPOSE
OF
THE
LAW
The intention of the framers of BP 22 is to make a mere act of issuing a worthless check malum
prohibitum. In prosecutions for violation of BP 22, therefore, prejudice or damage is not
prerequisite
for
conviction.
The agreement surrounding the issuance of the checks need not be first locked into, since the law
has provided that the mere issuance of any kind of check; regardless of the intent of the parties,
i.e., whether the check is intended merely to serve as guarantee or deposit, but which checks is
subsequently dishonored, makes the person who issued the check liable. (Lazaro vs CA, et al.,
GR
105461).
CAN A PERSON BE HELD LIABLE FOR ISSUING A CHECK WITH SUFFICIENT FUNDS
FOR
VIOLATION
OF
BP
22?
Yes.

Paragraph

of

Section

of

BP

22

provides:

The same penalty shall be imposed upon any person who having sufficient funds in or credit with
the drawee bank when he makes or draws and issues a check, shall fail to keep sufficient funds or
to maintain a credit to cover the full amount of the check if presented within a period of 90 days
from the date appearing thereon, for which reason, it is dishonored by the drawee bank.
RULE ON RENDERING UNJUST JUDGMENT, IGNORANCE, ETC. BY A JUDGE
In

the

case

of

De

la

Cruz

vs.

Concepcion

this

Court

declared:

"Mere errors in the appreciation of evidence, unless so gross and patent as to produce an
inference of ignorance or bad faith, or of knowing rendition of an unjust decision, are irrelevant
and immaterial in an administrative proceeding against him. No one, called upon to try facts or
interpret the law in the process of administering justice, can be infallible in his judgment. All that
is expected of him is that he follow the rules prescribed to ensure a fair and impartial hearing,
assess the different factors that emerge therefrom and bear on the issues presented, and on the
basis of the conclusions he finds established, with only his conscience and knowledge of the law
to guide him, adjudicate the case accordingly." (Gutierrez v Pallatao; Adm. Matter #RTJ-951326,
July
8,
1998)

DIFFERENCE

BETWEEN

ESTAFA

AND

VIOLATION

OF

BP

22

In the crime of estafa, deceit and damage are essential elements of the offense and have to be
established with satisfactory proof to warrant conviction. For violation of the Bouncing Checks
Law, on the other hand, the elements of deceit and damage are neither essential nor required.
Rather, the elements of B.P. Blg. 22 are (a) the making, drawing and issuance of any check to
apply to account or for value; (b) the maker, drawer or issuer knows at the time of issuance that
he does not have sufficient funds in or credit with the drawee bank for the payment of such check
in full upon its presentment; and, (c) the check is subsequently dishonored by the drawee bank
for insufficiency of funds or credit or would have been dishonored for the same reason had not
the drawer, without valid reason, ordered the bank to stop payment. (Uy v Court of Appeals, GR
119000,
July
28,
1997)
JURISDICTION

IN

BP

22

CASES

In respect of the Bouncing checks case, the offense also appears to be continuing in nature. It is
true that the offense is committed by the very fact of its performance (Colmenares vs. Villar, No.
L-27126, May 29, 1970, 33 SCRA 186); and that the Bouncing Checks Law penalizes not only
the fact of dishonor of a check but also the act of making or drawing and issuance of a bouncing
check (People vs. Hon. Veridiano, II, No. L-62243, 132 SCRA 523). The case, therefore, could
have been filed also in Bulacan. As held in Que vs. People of the Philippines, G.R. Nos. 7521718, September 11, 1987 "the determinative factor (in determining venue) is the place of the
issuance of the check". However, it is likewise true that knowledge on the part of the maker or
drawer of the check of the insufficiency of his funds, which is an essential ingredient of the
offense is by itself a continuing eventuality, whether the accused be within one territory or
another (People vs. Hon. Manzanilla, G.R. Nos. 66003-04, December 11, 1987). Accordingly,
jurisdiction to take cognizance of the offense also lies in the Regional Trial Court of Pampanga.
And, as pointed out in the Manzanilla case, jurisdiction or venue is determined by the allegation
in the Information, which are controlling (Arches vs. Bellosillo, 81 Phil. 190, cited in Tuzon vs.
Cruz, No. L-27410, August 28, 1975, 66 SCRA 235). The Information filed herein specifically
alleges that the crime was committed in San Fernando Pampanga and therefore within the
jurisdiction
of
the
Court
below.
This ruling was reiterated in the case of Lim vs. Rodrigo, 167 SCRA 487, where it was held:
Besides, it was held in People v. Hon. Manzanilla, supra, that as "violation of the bad checks act
is committed when one 'makes or draws and issues any check [sic] to apply on account or for
value, knowing at the time issue that he does not have sufficient funds' or having sufficient funds
in or credit with the drawee bank . . . shall fail to keep sufficient funds or to maintain a credit to
cover the full amount of the check if presented within a period of ninety (90) days from the date
appearing thereon, for which reason it is dishonored by the drawee bank," "knowledge" is an

essential ingredient of the offense charge. As defined by the statute, knowledge, is, by itself, a
continuing eventuality, whether the accused be within one territory or another. This being the
case, the Regional Trial Court of Baguio City has jurisdiction to try Criminal Case No. 2089-R
(688).
Moreover, we ruled in the same case of People v. Hon. Manzanilla, reiterated in People vs.
Grospe, supra, that jurisdiction or venue is determined by the allegations in the information. The
allegation in the information under consideration that the offense was committed in Baguio City
is therefore controlling and sufficient to vest jurisdiction upon the Regional Trial Court of
Baguio
City.
In the case at bench it appears that the three (3) checks were deposited in Lucena City. As to the
second error wherein the petitioner asserted that the checks were issued "as a guarantee only for
the feeds delivered to him" and that there is no estafa if a check is issued in payment of a preexisting obligation, the Court of Appeals pointed out that the petitioner obviously failed to
distinguish a violation of B.P. Blg. 22 from estafa under Article 315 (2) [d] of the Revised Penal
Code. It further stressed that B.P. Blg. 22 applies even in cases where dishonored checks were
issued as a guarantee or for deposit only, for it makes no distinction as to whether the checks
within its contemplation are issued in payment of an obligation or merely to guarantee the said
obligation and the history of its enactment evinces the definite legislative intent to make the
prohibition
all-embracing.
(Ibasco
vs
CA,
9/5/96)
ACTUAL KNOWLEDGE OF INSUFFICIENCY OF FUNDS ESSENTIAL IN BP 22
Knowledge of insufficiency of funds or credit in the drawee bank for the payment of a check
upon its presentment is an essential element of the offense. There is a prima facie presumption of
the existence of this element from the fact of drawing, issuing or making a check, the payment of
which was subsequently refused for insufficiency of funds. It is important to stress, however, that
this is not a conclusive presumption that forecloses or precludes the presentation of evidence to
the
contrary.
(Lim
Lao
v
CA;
6/20/97)
WHEN LACK OF KNOWLEDGE AND LACK OF POWER TO FUND THE CHECKS IN
CASES
OF
BP
22
A
DEFENSE
After a thorough review of the case at bar, the Court finds that Petitioner Lina Lim Lao did not
have actual knowledge of the insufficiency of funds in the corporate accounts at the time she
affixed her signature to the checks involved in this case, at the time the same were issued, and
even at the time the checks were subsequently dishonored by the drawee bank.
The scope of petitioner's duties and responsibilities did not encompass the funding of the
corporation's checks; her duties were limited to the marketing department of the Binondo branch.
Under the organizational structure of Premiere Financing Corporation, funding of checks was the
sole responsibility of the Treasury Department. (Lim Lao v CA; 6/20/97

LACK

OF

ADEQUATE

NOTICE

OF

DISHONOR,

DEFENSE

There can be no prima facie evidence of knowledge of insufficiency of funds in the instant case
because no notice of dishonor was actually sent to or received by the petitioner.
The notice of dishonor may be sent by the offended party or the drawee bank. The trial court
itself found absent a personal notice of dishonor to Petitioner Lina Lim Lao by the drawee bank
based on the unrebutted testimony of Ocampo "(t)hat the checks bounced when presented with
the drawee bank but she did not inform anymore the Binondo branch and Lina Lim Lao as there
was no need to inform them as the corporation was in distress." The Court of Appeals affirmed
this factual finding. Pursuant to prevailing jurisprudence, this finding is binding on this Court.
(Lim
Lao
v
CA;
6/20/97)
ANTI-GRAFT
(RA
ANTI-GRAFT
Corrupt

&

AND
practices

CORRUPT
NO
CORRUPT
of

PRACTICES

PRACTICES
public

ACT
3019)
ACT
officers.

(a) Persuading, inducing or influencing another public officer to perform an act constituting a
violation of rules and regulations duly promulgated by competent authority or an offense in
connection with the official duties of the latter, or allowing himself to be persuaded, induced, or
influenced
to
commit
such
violation
or
offense.
(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit,
for himself or for any other person, in connection with any contract or transaction between the
Government and any other part, wherein the public officer in his official capacity has to
intervene
under
the
law.
(c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material
benefit, for himself or for another, from any person for whom the public officer, in any manner
or capacity, has secured or obtained, or will secure or obtain, any Government permit or license,
in consideration for the help given or to be given, without prejudice to Section thirteen of this
Act.
(d) Accepting or having any member of his family accept employment in a private enterprise
which has pending official business with him during the pendency thereof or within one year
after
its
termination.
(e) Causing any undue injury to any party, including the Government, or giving any private party
any unwarranted benefits, advantage or preference in the discharge of his official administrative
or judicial functions through manifest partiality, evident bad faith or gross inexcusable

negligence. This provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other concessions.
( f ) Neglecting or refusing, after due demand or request, without sufficient justification, to act
within a reasonable time on any matter pending before him for the purpose of obtaining, directly
or indirectly, from any person interested in the matter some pecuniary or material benefit or
advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of
or
discriminating
against
any
other
interested
party.
(g) Entering, on behalf of the Government, into any contract or transaction manifestly and
grossly disadvantageous to the same, whether or not the public officer profited or will profit
thereby.
(h) Director or indirectly having financing or pecuniary interest in any business, contract or
transaction in connection with which he intervenes or takes part in his official capacity, or in
which he is prohibited by the Constitution or by any law from having any interest.
(i) Directly or indirectly becoming interested, for personal gain, or having a material interest in
any transaction or act requiring the approval of a board, panel or group of which he is a member,
and which exercises discretion in such approval, even if he votes against the same or does not
participate
in
the
action
of
the
board,
committee,
panel
or
group.
Interest for personal gain shall be presumed against those public officers responsible for the
approval of manifestly unlawful, inequitable, or irregular transaction or acts by the board, panel
or
group
to
which
they
belong.
( j) Knowingly approving or granting any license, permit, privilege or benefit in favor of any
person not qualified for or not legally entitled to such license, permit, privilege or advantage, or
of a mere representative or dummy of one who is not so qualified or entitled.
(k) Divulging valuable information of a confidential character, acquired by his office or by him
on account of his official position to unauthorized persons, or releasing such information in
advance
of
its
authorized
release
date.
UNEXPLAINED

WEALTH,

MEANING

Prima facie evidence of and dismissal due to unexplained wealth. If in accordance with the
provisions of RA 1379, a public official has been found to have acquired during his incumbency,
whether in his name or in the name of other persons, an amount of property and/or money
manifestly out of proportion to his salary and to his other lawful income, that fact shall be a
ground
for
dismissal
or
removal.
Note: Unsolicited gifts or presents of small or insignificant value shall be offered or given as a
mere ordinary token of gratitude or friendship according to local customs or usage shall be
exempted
from
the
provision
of
this
act.
MEANING

OF

CAUSING

UNDUE

INJURY

The act of giving any private party any unwarranted benefit, advantage or preference is not an
indispensable element of causing any undue injury to any part, although there may be instances
where both elements concur. (Santiago vs Garchitorena, et al., 2 Dec. 93).
In Mejoroda v Sandiganbayan, the Supreme Court has ruled that the offender in causing undue
injury does not refer only to those who are in charge of giving permits, licenses or concessions
but all acts of public officers or employees which have caused undue injury to others.
ELEMENTS

OF

NEGLECT

OF

DUTY

UNDER

SEC.

OF

RA

3019

a.
the
offender
is
a
public
officer;
b. the said officer has neglected or has refused to act without sufficient justification after due
demand
or
request
has
been
made
upon
him;
c. reasonable time has elapsed from such demand or request without the public officer having
acted
on
the
matter
pending
before
him;
d. such failure to so act is for the purpose of obtaining directly or indirectly from any person
interested in the matter some pecuniary or material benefit or advantage in favor of an interested
party
or
discriminating
against
another.
Coronado
v
Sandiganbayan.
WHERE PUBLIC OFFICER ACTED WITH MANIFEST PARTIALITY, EVIDENT BAD
FAITH,
OR
INEXCUSABLE
NEGLIGENCE
Sec. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public
officer
and
are
hereby
declared
to
be
unlawful:
xxx

xxx

xxx

(e). Causing any undue injury to any party, including the Government, or giving any private
party any unwarranted benefits, advantage or preference in the discharge of his official
administrative or judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and employees of offices or
government corporations charged with the grant of licenses or permits or other concessions.
VIOLATION OF SECTION 3 (E) OF RA 3019 REQUIRES PROOF OF THE FOLLOWING
FACTS,
VIZ:
a. the accused is a public officer discharging administrative or official functions or private
persons
charged
in
conspiracy
with
them;
b. the public officer committed the prohibited act during the performance of his official duty or
in
relation
to
his
public
position;

c. the public officer acted with manifest partiality evident bad faith or gross, inexcusable
negligence;
and
d. his action caused undue injury to the government or any private party, or gave any party any
unwarranted
benefit,
advantage
or
preference
to
such
parties.
CAUSING UNDUE INJURY UNDER SEC. 3, LETTER (e) OF RA 3019. MEANING.
Section 3 enumerates in eleven subsections the corrupt practices of any public officer declared
unlawful. Its reference to any public officer is without distinction or qualification and it specifies
the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last
inclusion of officers and employees of offices or government corporations which, under the
ordinary concept of public officer may not come within the term. It is a strained construction
of the provision to read it as applying exclusively to public officers charged with the duty of
granting license or permits or other concessions. (Mejorada v Sandiganbayan, 151 SCRA 399).
SUSPENSION UNDER R.A. 3019 MANDATORY BUT COURTS ARE ALLOWED TO
DETERMINE
WHETHER
INFORMATION
IS
VALID
OR
NOT
It is well settled that Section 13 of RA 3019 makes it mandatory for the Sandiganbayan (or the
Court) to suspend any public officer against whom a valid information charging violation of this
law, Book II, Title 7 of the RPC, or any offense involving fraud upon government or public funds
or property is filed in court. The court trying a case has neither discretion nor duty to determine
whether preventive suspension is required to prevent the accused from using his office to
intimidate witnesses or frustrate his prosecution or continue committing malfeasance in office.
All that is required is for the court to make a finding that the accused stands charged under a
valid information for any of the above-described crimes for the purpose of granting or denying
the sought for suspension. (Bolastig vs. Sandiganbayan, G.R. No. 110503 [August 4, 1994], 235
SCRA 103).In the same case, the Court held that "as applied to criminal prosecutions under RA
3019, preventive suspension will last for less than ninety (90) days only if the case is decided
within that period; otherwise, it will continue for ninety (90) days." (Conducto v. Monzon; A.M.
No.
MTJ-98-1147,
July
2,
1998)
PUBLIC OFFICER MAY BE SUSPENDED FROM HIS PRESENT POSITION EVEN IF THE
CRIME WHICH HE IS BEING CHARGED WAS COMMITTED DURING HIS PREVIOUS
TERM
Judge Monzon's contention denying complainant's Motion for Suspension because "offenses
committed during the previous term (is) not a cause for removal during the present term" is
untenable. In the case of Rodolfo E. Aguinaldo vs. Hon. Luis Santos and Melvin Vargas, 212
SCRA 768, the Court held that "the rule is that a public official cannot be removed for

administrative misconduct committed during a prior term since his re-election to office operates
as a condonation of the officer's previous misconduct committed during a prior term, to the
extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no
application
to
criminal
cases
.
.
."
Likewise, it was specifically declared in the case of Ingco vs. Sanchez, G.R. No. L-23220, 18
December 1967, 21 SCRA 1292, that "The ruling, therefore, that 'when the people have elected a
man to office it must be assumed that they did this with knowledge of his life and character and
that they disregarded or forgave his faults or misconduct if he had been guilty of any' refers only
to an action for removal from office and does not apply to a criminal case"
Clearly, even if the alleged unlawful appointment was committed during Maghirang's first term
as barangay chairman and the Motion for his suspension was only filed in 1995 during his
second term, his re-election is not a bar to his suspension as the suspension sought for is in
connection with a criminal case. (Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998)
RE-ELECTION IN PUBLIC OFFICE EXTINGUISHING ONLY HIS ADMINISTRATIVE
LIABILITY
BUT
NOT
HIS
CRIMINAL
LIABILITY
As early as 18 December 1967 in Ingco v. Sanchez, 17 this Court explicitly ruled that the reelection of a public official extinguishes only the administrative, but not the criminal, liability
incurred
by
him
during
his
previous
term
of
office,
thus:
The ruling, therefore, that "when the people have elected a man to his office it must be
assumed that they did this with knowledge of his life and character and that they disregarded or
forgave his faults or misconduct if he had been guilty of any" refers only to an action for
removal from office and does not apply to criminal case, because a crime is a public wrong more
atrocious in character than mere misfeasance or malfeasance committed by a public officer in the
discharge of his duties, and is injurious not only to a person or group of persons but to the State
as a whole. This must be the reason why Article 89 of the Revised Penal Code, which enumerates
the grounds for extinction of criminal liability, does not include reelection to office as one of
them, at least insofar as a public officer is concerned. Also, under the Constitution, it is only the
President who may grant the pardon of a criminal offense. (Conducto v. Monzon; A.M. No.
MTJ-98-1147,
July
2,
1998)
PRE-CONDITION OF SUSPENSION (PREVENTIVE) UNDER SEC. 13, RA 3019
It is mandatory for the court to place under preventive suspension a public officer accused before
it. Imposition of suspension, however, is not automatic or self-operative. A pre-condition thereof
is the existence of a valid information, determined at a pre-suspension hearing. Such a hearing is
in accord with the spirit of the law, considering the serious and far-reaching consequences of a
suspension of a public official even before his conviction, and the demands of public interest for
a speedy determination of the issues involved in the case. The purpose of the pre-suspension
hearing is basically to determine the validity of the information and thereby furnish the court

with a basis to either suspend the accused and proceed with the trial on the merits of the case, or
refuse suspension of the latter and dismiss the case, or correct any part of the proceeding which
impairs its validity. The accused should be given adequate opportunity to challenge the validity
or regularity of the criminal proceedings against him; e.g. that he has not been afforded the right
to due preliminary investigation; that the acts imputed to him do not constitute a specific crime
(under R.A. 3019 or the Revised Penal Code) warranting his mandatory suspension from office
under Section 13 of the Act; or that the information is subject to quashal on any of the grounds
set out in Rule 117 of the Rules of Court. But once a proper determination of the validity of the
information has been made, it becomes the ministerial duty of the court to forthwith issue the
order of
reventive suspension. The court has no discretion, for instance, to hold in abeyance the
suspension of the accused official on the pretext that the order denying the latter's motion to
quash is pending review before the appellate courts. (Segovia v. Sandiganbayan; GR 124067,
Mar.
27,
1998)
GUIDELINES

TO

BE

FOLLOWED

IN

PREVENTIVE

SUSPENSION

CASES

"In the leading case of Luciano, et al. vs. Mariano, et al. (L-32950, July 30, 1971, 40 SCRA 187),
we have set out the guidelines to be followed by the lower courts in the exercise of the power of
suspension
under
Section
13
of
the
law,
to
wit:
(c) By way of broad guidelines for the lower courts in the exercise of the power of suspension
from office of public officers charged under a valid information under the provisions of Republic
Act No. 3019 or under the provisions of the Revised Penal Code on bribery, pursuant to section
13 of said Act, it may be briefly stated that upon the filing of such information, the trial court
should issue an order with proper notice requiring the accused officer to show cause at a specific
date of hearing why he should not be ordered suspended from office pursuant to the cited
mandatory provisions of the Act. Where either the prosecution seasonably files a motion for an
order of suspension or the accused in turn files a motion to quash the information or challenges
the validity thereof, such show-cause order of the trial court would no longer be necessary. What
is indispensable is that the trial court duly hear the parties at a hearing held for determining the
validity of the information, and thereafter hand down its ruling, issuing the corresponding order
of suspension should it uphold the validity of the information or withhold such suspension in the
contrary
case.
(d) No specific rules need be laid down for such pre-suspension hearing. Suffice it to state that
the accused should be given a fair and adequate opportunity to challenge the validity of the
criminal proceedings against him, e.g., that he has not been afforded the right of due preliminary
investigation, the act for which he stands charged do not constitute a violation of the provisions
of Republic Act No. 3019 or of the bribery provisions of the Revised Penal Code which would
warrant his mandatory suspension from office under Section 13 of the Act, or he may present a
motion to quash the information on any of the grounds provided in Rule 117 of the Rules of
Court. The mandatory suspension decreed by the act upon determination of the pendency in court
or a criminal prosecution for violation of the Anti-Graft Act or for bribery under a valid
information requires at the same time that the hearing be expeditious, and not unduly protracted
such as to thwart the prompt suspension envisioned by the Act. Hence, if the trial court, say,

finds the ground alleged in the quashal motion not to be indubitable, then it shall be called upon
to issue the suspension order upon its upholding the validity of the information and setting the
same
for
trial
on
the
merits.'
(Segovia
v.
Sandiganbayan)
WHEN MAY A PUBLIC OFFICER BE LIABLE FOR CAUSING UNDUE INJURY UNDER
SEC.
3(e)
of
RA
3019
xxx

xxx

xxx

(c) Causing any undue injury to any party, including the Government, or giving any private party
any unwarranted benefits, advantage or preference in the discharge of his official, administrative
or judicial functions through manifest partiality, evident bad faith or gross inexcusable
negligence. This provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other concessions."
To hold a person liable under this section, the concurrence of the following elements must be
established
beyond
reasonable
doubt
by
the
prosecution:
"(1) That the accused is a public officer or a private person charged in conspiracy with the
former;
(2) That said public officer commits the prohibited acts during the performance of his or her
official
duties
or
in
relation
to
his
or
her
public
positions;
(3) That he or she causes undue injury to any party, whether the government or a private party;
and
(4) That the public officer has acted with manifest partiality, evident bad faith or gross
inexcusable negligence." (Llorente v. Sandiganbayan; GR 122166, Mar. 11, 1998)
MEANING

OF

BAD

FAITH

UNDER

SECTION

3(e)

OF

RA

3019

"Bad faith does not simply connote bad judgment or negligence; it imputes a dishonest purpose
or some moral obliquity and conscious doing of a wrong; a breach of sworn duty through some
motive or intent or ill will; it partakes of the nature of fraud. (Spiegel v Beacon Participations, 8
NE 2nd Series 895, 1007). It contemplates a state of mind affirmatively operating with furtive
design or some motive of self interest or ill will for ulterior purposes (Air France v. Carrascoso,
18 SCRA 155, 166-167). Evident bad faith connotes a manifest deliberate intent on the part of
the
accused
to
do
wrong
or
cause
damage."
In Jacinto, evident bad faith was not appreciated because the actions taken by the accused were
not entirely without rhyme or reason; he refused to release the complainant's salary because the
latter failed to submit her daily time record; he refused to approve her sick-leave application
because he found out that she did not suffer any illness; and he removed her name from the
plantilla because she was moonlighting during office hours. Such actions were measures taken
by a superior against an erring employee who studiously ignored, if not defied, his authority.
(Llorente
v.
Sandiganbayan)

WHEN OFFENDER IS NOT LIABLE UNDER SEC. 3(e) BUT UNDER SEC. (f) OF RA 3019
It would appear that petitioner's failure or refusal to act on the complainant's vouchers, or the
delay in his
acting
on them
more
properly falls
under
Sec. 3[f]:
"(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act
within a reasonable time on any matter pending before him for the purpose of obtaining, directly
or indirectly, from any person interested in the matter some pecuniary or material benefit or
advantage, or for purpose of favoring his own interest or giving undue advantage in favor of or
discriminating
against
any
other
interested
party."
Here, the neglect or refusal to act within a reasonable time is the criminal act, not the causing of
undue
injury.
Thus,
its
elements
are:
"1)
The
offender
is
a
public
officer;
2) Said officer has neglected or has refused to act without sufficient justification after due
demand
or
request
has
been
made
on
him;
3) Reasonable time has elapsed from such demand or request without the public officer having
acted
on
the
matter
pending
before
him;
and
4) Such failure to so act is 'for the purpose of obtaining, directly or indirectly, from any person
interested in the matter some pecuniary or material benefit or advantage in favor of an interested
party,
or
discriminating
against
another."
However, petitioner is not charged with a violation of Sec. 3[f]. Hence, further disquisition is not
proper. Neither may this Court convict petitioner under Sec. 3[f] without violating his
constitutional
right
to
due
process.
(Llorente
v.
Sandiganbayan)
SUSPPENSION (PREVENTIVE) OF LOCAL OFFICIALS SHALL ONLY BE FOR 60 DAYS
On the other hand, we find merit in petitioner's second assigned error. The Sandiganbayan erred
in imposing a 90 day suspension upon petitioner for the single case filed against him. Under
Section 63 (b) of the Local Government Code, "any single preventive suspension of local
elective officials shall not extend beyond sixty (60) days." (Rios v. Sandiganbayan; GR 129913,
Set.
26,
1997)
APPROVAL

OF

LEAVE

OF

ABSENCE

NOT

BAR

TO

SUSPENSION

Since the petitioner is an incumbent public official charged in a valid information with an offense
punishable under the Constitution and the laws (RA 3019 and PD 807), the law's command that
he "shall be suspended from office" pendente lite must be obeyed. His approved leave of absence
is not a bar to his preventive suspension for as indicated by the Solicitor General, an approved
leave, whether it be for a fixed or indefinite period, may be cancelled or shortened at will by the
incumbent.
(Doromal
v.
Sandiganbayan;
GR
85468,
Sepr.
7,
1989)

UNDUE DELAY IN PRELIMINARY INVESTIGATIONS VIOLATIVE OF DUE PROCESS

AND
A
GROUND
TO
DISMISS
After a careful review of the facts and circumstances of this case, we are constrained to hold that
the inordinate delay in terminating the preliminary investigation and filing the information in the
instant case is violative of the constitutionally guaranteed right of the petitioner to due process
and to a speedy disposition of the cases against him. Accordingly, the informations in Criminal
Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of the
foregoing, we find it unnecessary to rule on the other issues raised by petitioner. (Tatad v.
Sandiganbayan)

DEATH
(RA

PENALTY

PROSTITUTES

CAN

BE

LAW
7659)
VICTIM

OF

RAPE

As to the suggestion that ANALIZA was a prostitute, that alone, even if it be conceded, cannot
absolve him of his liability for rape. First, prostitutes can be victims of rape. (People v. Alfeche)
REASON

WHY

DWELLING

IS

AN

AGGRAVATING

CIRCUMSTANCE

Dwelling is considered an aggravating circumstance because primarily of the sanctity of privacy

the law accords to human abode. The dwelling need not be owned by the victim. Thus, in People
v. Basa, dwelling was appreciated, although the victims were killed while sleeping as guests in
the house of another. As aptly stated in People v. Balansit: "[O]ne does not lose his right of
privacy where he is offended in the house of another because as [an] invited guest [or a
housemaid as in the instant case], he, the stranger, is sheltered by the same roof and protected by
the same intimacy of life it affords. It may not be his house, but it is, even for a brief moment,
"home" to him. He is entitled to respect even for that short moment." (People v. Alfeche)
WHEN RELATIONSHIP IS NOT AN ALTERNATIVE CIRCUMSTANCE UNDER ART. 15
OF
THE
RPC
Clearly then, the father-daughter relationship in rape cases, or between accused and Relanne, in
this case, has been treated by Congress in the nature of a special circumstance which makes the
imposition of the death penalty mandatory. Hence, relationship as an alternative circumstance
under Article 15 of the Revised Penal Code, appreciated as an aggravating circumstance, should
no longer be applied in view of the amendments introduced by R.A. No. 7659. It may be pointed,
however, that without the foregoing amendment, relationship would still be an aggravating
circumstance in the crimes of rape (Article 335) and acts of lasciviousness (Article 336). 57

If relationship in the instant case were to be appreciated under Article 15 of the Revised Penal
Code, the penalty imposable on accused then would not be death, but merely reclusion perpetua
for, assuming that Relanne's testimony in court would have confirmed what she narrated in her
sworn statement (Exhibit "C"), no circumstance then attended the commission of the rape which
could bring the crime under any provision of Article 335 which imposes a penalty higher than
reclusion perpetua or of reclusion perpetua to death. (People v. Manyuhod, Jr.)
WHEN OFFENDER IS STEP GRANDPARENT, HE IS NOT CONSIDERED AN
ASCENDANT
UNDER
RA
8353
AND
RA
7659
The trial court has thus held incorrectly in considering appellant, who is legally married to
Roxan's natural grandmother, as among those named in the enumeration. Appellant is merely a
step-grandparent who obviously is neither an "ascendant" nor a "step-parent" of the victim. In the
recent case of People vs. Atop, 24 the Court rejected the application of the mandatory death
penalty to the rape of a 12-year old victim by the common-law husband of the girl's grandmother.
The
Court
said:
"It is a basic rule of statutory construction that penal statutes are to be liberally construed in favor
of the accused. Court's must not bring cases within the provision of a law which are not clearly
embraced by it. No act can be pronounced criminal which is not clearly made so by statute; so,
too, no person who is not clearly within the terms of a statute can be brought within them. Any
reasonable
doubt
must
be
resolved
in
favor
of
the
accused."
(People
v.
Deleverio)
RECLUSION PERPETUA IS LIGHTER THAN LIFE IMPRISONMENT AND IF ONE IS
SENTENCED TO LIFE IMPRISONMENT AND LATER IMPOSED RECLUSION
PERPETUA TO SAME OFFENSE, THE PENALTY THAT SHOULD BE IMPOSED IS
RECLUSION
PERPETUA
Since reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule that
criminal statutes with a favorable effect upon the accused have, as to him, a retroactive effect, the
penalty imposable upon the accused should be reclusion perpetua and not life imprisonment.
(People
v.
Latura)
JUSTIFICATION

FOR

THE

IMPOSITION

OF

THE

DEATH

PENALTY

Although its origins seem lost in obscurity, the imposition of death as punishment for violation of
law or custom, religious or secular, is an ancient practice. We do know that our forefathers killed
to avenge themselves and their kin and that initially, the criminal law was used to compensate for
a wrong done to a private party or his family, not to punish in the name of the state.
The dawning of civilization brought with it both the increasing sensitization throughout the later

generations against past barbarity and the institutionalization of state power under the rule of
law. Today every man or woman is both an individual person with inherent human rights
recognized and protected by the state and a citizen with the duty to serve the common weal and
defend
and
preserve
society.
One of the indispensable powers of the state is the power to secure society against threatened and
actual evil. Pursuant to this, the legislative arm of government enacts criminal laws that define
and punish illegal acts that may be committed by its own subjects, the executive agencies enforce
these laws, and the judiciary tries and sentences the criminals in accordance with these laws.
Although penologists, throughout history, have not stopped debating on the causes of criminal
behavior and the purposes of criminal punishment, our criminal laws have been perceived as
relatively stable and functional since the enforcement of the Revised Penal Code on January 1,
1932, this notwithstanding occasional opposition to the death penalty provisions therein. The
Revised Penal Code, as it was originally promulgated, provided for the death penalty in specified
crimes under specific circumstances. As early as 1886, though, capital punishment had entered
our legal system through the old Penal Code, which was a modified version of the Spanish Penal
Code
of
1870.
(People
v.
Echegaray)
WHY DEATH PENALTY IS NOT A CRUEL AND UNUSUAL PUNISHMENT
"The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte Kemmler, 136
U.S., 436, the United States Supreme Court said that 'punishments are cruel when they involve
torture or a lingering death, but the punishment of death is not cruel, within the meaning of that
word as used in the constitution. It implies there something inhuman and barbarous, something
more
than
the
mere
extinguishment
of
life.'"
as long as that penalty remains in the statute books, and as long as our criminal law provides for
its imposition in certain cases, it is the duty of judicial officers to respect and apply the law
regardless of their private opinions," and this we have reiterated in the 1995 case of People v.
Veneracion.
(People
v.
Echegaray)
DEATH

PENALTY

WAS

NOT

ABOLISHED

BUT

MERELY

SUSPENDED

A reading of Section 19 (1) of Article III will readily show that there is really nothing therein
which expressly declares the abolition of the death penalty. The provision merely says that the
death penalty shall not be imposed unless for compelling reasons involving heinous crimes the
Congress hereafter provides for it and, if already imposed, shall be reduced to reclusion perpetua.
The language, while rather awkward, is still plain enough". (People v. Echegaray)
DEFINITION

OF

HEINOUS

CRIMES

". . . the crimes punishable by death under this Act are heinous for being grievous, odious and

hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness,
atrocity and perversity are repugnant and outrageous to the common standards and norms of
decency and morality in a just, civilized and ordered society." (People v. Echegaray)
WHAT ARE THE CRIMES PUNISHABLE BY RECLUSION PERPETUA TO DEATH
UNDER
RA
7659
Under R.A. No. 7659, the following crimes are penalized by reclusion perpetua to death:
(1)
Treason
(Sec.
2);
(2)
Qualified
piracy
(Sec.
3);
(3)
Parricide
(Sec.
5);
(4)
Murder
(Sec.
6);
(5)
Infanticide
(Sec.
7);
(6) Kidnapping and serious illegal detention if attended by any of the following four
circumstances: (a) the victim was detained for more than three days; (b) it was committed
simulating public authority; (c) serious physical injuries were inflicted on the victim or threats to
kill him were made; and (d) if the victim is a minor, except when the accused is any of the
parents,
female
or
a
public
officer
(Sec.
8);
(7)
Robbery
with
homicide,
rape
or
intentional
mutilation
(Sec.
9);
(8) Destructive arson if what is burned is (a) one or more buildings or edifice; (b) a building
where people usually gather; (c) a train, ship or airplane for public use; (d) a building or factory
in the service of public utilities; (e) a building for the purpose of concealing or destroying
evidence Or a crime; (f) an arsenal, fireworks factory, or government museum; and (g) a
storehouse or factory of explosive materials located in an inhabited place; or regardless of what
is burned, if the arson is perpetrated by two or more persons (Sec. 10);
(9) Rape attended by any of the following circumstances: (a) the rape is committed with a deadly
weapon; (b) the rape is committed by two or more persons; and (c) the rape is attempted or
frustrated
and
committed
with
homicide
(Sec.
11);
(10)
Plunder
involving
at
least
P50
million
(Sec.
12);
(11)
Importation
of
prohibited
drugs
(Sec.
13);
(12) Sale, administration, delivery, distribution, and transportation of prohibited drugs (id.);
(13) Maintenance of den, dive or resort for users of prohibited drugs (id.);
(14)
Manufacture
of
prohibited
drugs
(id.);
(15) Possession or use of prohibited drugs in certain specified amounts (id.);
(16) Cultivation of plants which are sources of prohibited drugs (id.)
(17)
Importation
of
regulated
drugs
(Sec.
14);
(18)
Manufacture
of
regulated
drugs
(id.);
(19) Sale, administration, dispensation, delivery, transportation, and distribution of regulated
drugs
(id.);
(20) Maintenance of den, dive, or resort for users of regulated drugs (Sec. 15);
(21) Possession or use of regulated drugs in specified amounts (Sec. 16);
(22) Misappropriation, misapplication or failure to account dangerous drugs confiscated by the

arresting
officer
(Sec.
17);
(23) Planting evidence of dangerous drugs in person or immediate vicinity of another to
implicate
the
latter
(Sec.
19);
and
(24) Carnapping where the owner, driver or occupant of the carnapped motor vehicle is killed or
raped
(Sec.
20).
(People
v.
Echegaray)
WHAT ARE THE MANDATORY CRIMES PUNISHABLE BY MANDATORY DEATH
PENALTY
UNDER
RA
7659
On the other hand, under R.A. No. 7659, the mandatory penalty of death is imposed in the
following
crimes:
(1)

Qualified

bribery

"If any public officer is entrusted with law enforcement and he refrains from arresting or
prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or
death in consideration of any offer, promise, gift or present, he shall suffer the penalty for the
offense
which
was
not
prosecuted.
If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of
death."
(Sec.
4)
(2) Kidnapping and serious illegal detention for ransom resulting in the death of the victim or the
victim
is
raped,
tortured
or
subjected
to
dehumanizing
acts
"The penalty shall be death where the kidnapping or detention was committed for the purpose of
ransom from the victim or any other person, even if none of the circumstances above-mentioned
were
present
in
the
commission
of
the
offense.
When the victim is killed or dies as a consequence of the detention or is raped, or is subject to
torture or dehumanizing acts, the maximum penalty [of death] shall be imposed." (Sec. 8)
(3)

Destructive

arson

resulting

in

death

"If as a consequence of the commission of any of the acts penalized under this Article, death
results, the mandatory penalty of death shall be imposed." (Sec. 10)
(4)

Rape

with

the

victim

becoming

insane,

rape

with

homicide

and

qualified

"When by reason or on the occasion of the rape, the victim has become insane, the penalty shall
be
death.
xxx

xxx

xxx

When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be
death.

The death penalty shall also be imposed if the crime of rape is committed with any of the
following
attendant
circumstances:
1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common-law
spouse
of
the
parent
or
the
victim.
2. when the victim is under the custody of the police or military authorities.
3. when the rape is committed in full view of the husband, parent, any of the children or other
relatives
within
the
third
degree
of
consanguinity.
4. when the victim is a religious or a child below seven (7) years old
5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome
(AIDS)
disease.
6. when committed by any member of the Armed Forces of the Philippines or the Philippine
National
Police
or
any
law
enforcement
agency.
7. when by reason or on the occasion of the rape, the victim has suffered permanent physical
mutilation."
(Sec.
11
)
(5) Sale, administration, delivery, distribution and transportation of prohibited drugs where the
victim
is
a
minor
or
the
victim
dies
"Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the
offense is a minor, or should a prohibited drug involved in any offense under this Section be the
proximate cause of the death of victim thereof, the maximum penalty [of death] herein provided
shall
be
imposed."
(Sec.
13)
(6) Maintenance of den, dive, or resort for users of prohibited drugs where the victim is a minor
or
the
victim
dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum of the
penalty [of death] shall be imposed in every case where a prohibited drug is administered,
delivered or sold to a minor who is allowed to use the same in such place.
Should a prohibited drug be the proximate case of the death of a person using the same in such
den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer
notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 13)
(7) Sale, administration, dispensation, delivery, distribution and transportation of regulated drugs
where
the
victim
is
a
minor
or
the
victim
dies
"Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the
offense is a minor, or should a regulated drug involved in any offense under this Section be the
proximate cause of the death of a victim thereof, the maximum penalty [of death] herein
provided
shall
be
imposed."
(Sec.
14)
(8) Maintenance of den, dive, or resort for users of regulated drugs where the victim is a minor or
the
victim
dies

"Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum penalty
[of death] herein provided shall be imposed in every case where a regulated drug is administered,
delivered or sold to a minor who is allowed to use the same in such place.
Should a regulated drug be the proximate cause of death of a person using the same in such den,
dive or resort, the maximum penalty herein provided shall be imposed on the maintainer
notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 15)
(9) Drug offenses if convicted are government officials, employees or officers including
members
of
police
agencies
and
armed
forces
"The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1), 6, 7, 8, 9, 11,12 and 13
of Article II and Sections 14, 14-A, 14(1), 15A (1), 16, and 19 of Article III [of the Dangerous
Drugs Act of 1972] shall be imposed, if those found guilty or any of the same offenses are
government officials, employees or officers including members of police agencies and the armed
forces."
(Sec.
19)
(10) Planting of dangerous drugs as evidence in drug offenses with the mandatory death penalty
if
convicted
are
government
officials,
employees
or
officers
"Any such above government official, employee or officer who is found guilty of 'planting' any
dangerous drugs punished in Section s 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15,
and 16 of Article III (of the Dangerous Drugs Act of 1972) in the person or in the immediate
vicinity of another as evidence to implicate the latter, shall suffer the same penalty as therein
provided."
(Sec.
19)
(11)

In

all

the

crimes

in

RA.

No.

7659

in

their

qualified

form

"When in the commission of the crime, advantage was taken by the offender of his public
position, the penalty to be imposed shall be in its maximum [of death] regardless of mitigating
circumstances.
The maximum penalty [of death] shall be imposed if the offense was committed by any person
who
belongs
to
an
organized/syndicated
crime
group.
An organized/syndicated crime group means a group of two or more persons collaborating,
confederating or mutually helping one another for purposes of gain in the commission of any
crime."
(Sec.
23)
(People
v.
Echegaray)
TWO INSTANCES WHEN DEATH MAY BE IMPOSED WHEN CONSTRUED UNDER RA
7659
Thus, construing R.A. No. 7659 in pari materia with the Revised Penal Code, death may be
imposed when (1) aggravating circumstances attend the commission of the crime as to make
operative the provision of the Revised Penal Code regarding the imposition of the maximum

penalty; and (2) other circumstances attend the commission of the crime which indubitably
characterize the same as heinous in contemplation of R.A. No. 7659 that justify the imposition of
the death, albeit the imposable penalty is reclusion perpetua to death. (People v. Echegaray)
WHY

DEATH

PENALTY

IS

IMPOSED

ON

HEINOUS

CRIMES

The death penalty is imposed in heinous crimes because the perpetrators thereof have committed
unforgivably execrable acts that have so deeply dehumanized a person or criminal acts with
severely destructive effects on the national efforts to lift the masses from abject poverty through
organized governmental strategies based on a disciplined and honest citizenry, and because they
have so caused irreparable and substantial injury to both their victim and the society and a
repetition of their acts would pose actual threat to the safety of individuals and the survival of
government, they must be permanently prevented from doing so. At any rate, this court has no
doubts as to the innate heinousness of the crime of rape, as we have held in the case of People v.
Cristobal.
(People
v.
Echegaray)
WHY

RAPE

IS

HEINOUS

CRIME

"Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice
and charity. Rape deeply wounds the respect, freedom, and physical and moral integrity to which
every person has a right. It causes grave damage that can mark the victim for life. It is always an
intrinsically evil act . . . an outrage upon decency and dignity that hurts not only the victim but
the
society
itself."
(People
v.
Echegaray)
WHY

CAPITAL

PUNISHMENT

SHOULD

NOT

BE

ABOLISHED

"Capital punishment ought not to be abolished solely because it is substantially repulsive, if

infinitely less repulsive than the acts which invoke it. Yet the mounting zeal for its abolition
seems to arise from a sentimentalized hyperfastidiousness that seeks to expunge from the society
all that appears harsh and suppressive. If we are to preserve the humane society we will have to
retain sufficient strength of character and will to do the unpleasant in order that tranquillity and
civility may rule comprehensively. It seems very likely that capital punishment is a . . . necessary,
if limited factor in that maintenance of social tranquillity and ought to be retained on this ground.
To do otherwise is to indulge in the luxury of permitting a sense of false delicacy to reign over
the
necessity
of
social
survival."
(People
v.
Echegaray)
RA 6425 AS AMENDED BY RA 7659 WHEN PENALTY IN NEW LAW NOT FAVORABLE
TO
ACCUSED
IT
SHOULD
BE
RETAINED
Appellant in this case was convicted and meted the penalty of life imprisonment and fine of
twenty thousand pesos under RA 6425 for transporting more or less 6 kilos of marijuana on July
1990. RA 7659, which took effect on December 31/93, amended the provisions of RA 6425,

increasing the imposable penalty for the sale or transport of 750 grams or more of marijuana to
reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million
pesos. Such penalty is not favorable to the appellant as it carries the accessory penalties provided
under the RPC and has a higher amount of fine which in accordance with ART 22 of the same
code should not be given retroactive effect. The court, therefore, finds and so holds that the
penalty of life imprisonment and fine in the amount of twenty thousand pesos correctly imposed
by
the
trial
court
should
be
retained.
(PP
v
Carreon,
12/9/97)
COURTS SHOULD NOT BE CONCERNED ABOUT WISDOM, EFFICACY OR MORALITY
OF
LAWS
It is a well settled rule that the courts are not concerned with the wisdom, efficacy or morality of
laws. That question falls exclusively within the province of the Legislature which enacts them
and the Chief Executive who approves or vetoes them. The only function of the judiciary is to
interpret the laws and, if not in disharmony with the Constitution, to apply them. And for the
guidance of the members of the judiciary we feel it incumbent upon us to state that while they as
citizens or as judges may regard a certain law as harsh, unwise or morally wrong, and may
recommend to the authority or department concerned, its amendment, modification, or repeal,
still, as long as said law is in force, they must apply it and give it effect as decreed by the lawmaking
body.
(People
v.
Veneracion)
REASON FOR DURATION OF RECLUSION PERPETUA OF 30 OR 40 YEARS
The imputed duration of thirty (30) years for reclusion perpetua, therefore, is only to serve as the
basis for determining the convict's eligibility for pardon or for the application of the three-fold
rule
in
the
service
of
multiple
penalties.
(People
v.
Lucas)
ROBBERY WITH HOMICIDE, NUMBER OF PERSONS KILLED DOES NOT ALTER
CHARACTERIZATION OF THE OFFENSE BUT CAN BE APPRECIATED AS
AGGRAVATING
CIRCUMSTANCE.
While the number of persons killed does not alter the characterization of the offense as robbery
with homicide, the multiplicity of the victims slain should have been appreciated as an
aggravating circumstance. This would preclude an anomalous situation where, from the
standpoint of the gravity of the offense, robbery with one killing would be treated in the same
way that robbery with multiple killings would be. (People V. Timple)
ROBBERY WITH HOMICIDE AND ROBBERY WITH RAPE; PROVISION OF ARTICLE
294 OF THE REVISED PENAL CODE AS AMENDED BY REPUBLIC ACT 7659 CANNOT
BE
APPLIED
RETROACTIVELY;
CASE
AT
BAR.
Under Article 294 (1) of the Revised Penal Code, robbery with homicide is punishable by
reclusion perpetua to death. In view, however, of the first paragraph of Section 19, Article III of
the 1987 Constitution, which provides that: "Sec. 19. (1) Excessive fines shall not be imposed,

nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed,
unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to reclusion perpetua" (Emphasis supplied)
only the penalty of reclusion perpetua could be imposed by the trial court. Hence, the attended
aggravating circumstances in this case had no impact upon the determination of the proper
penalty by the trial court. By Republic Act No. 7659 (effective 31 December 1993), Congress reimposed the death penalty for certain heinous crimes, including robbery with homicide and
robbery with rape. By the same statute, Article 294 of the Revised Penal Code was amended to
read as follows: "Any person guilty of robbery with the use of violence against or intimidation
on any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on
occasion of the robbery, the crime of homicide shall have been committed, or when the robbery
shall have been accompanied by rape or intentional mutilation or arson. . . . (Emphasis supplied)
Article 294 of the Revised Penal Code, as amended by R.A. No. 7659, however, cannot be
applied retroactively in this case. To do so would be to subject the appellant to the death penalty
which could not have been constitutionally imposed by the court a quo under the law in effect at
the
time
of
the
commission
of
the
offenses.
(People
v.
Timple)
A PERSON MAY BE CONVICTED OF GRAVE COERCION ALTHOUGH THE CHARGE IS
KIDNAPPING
The Information, dated March 24, 1992, filed against Astorga contains sufficient allegations
constituting grave coercion, the elements of which were sufficiently proved by the prosecution.
Hence, a conviction for said crime is appropriate under Section 4, Rule 120 of the 1988 Rules on
Criminal
Procedure.
(People
-vsAstorga)
ELEMENTS
Grave

Coercion

OF
or

GRAVE
coaccion

grave

COERCION
has

three

elements:

a. That any person is prevented by another from doing something not prohibited by law, or
compelled to do something against his or her will, be it right or wrong;
b. That the prevention or compulsion is effected by violence, either by material force or such a
display of it as would produce intimidation and, consequently, control over the will of the
offended
party;
and
c. that the person who restrains the will and liberty of another has no right to do so or, in other
words, that the restraint is not made under authority of a law or in the exercise of any lawful
right.
(People
-vsAstorga)
ACTUAL DETENTION OR LOCKING UP, AN ESSENTIAL ELEMENT OF KIDNAPPING
Actual detention or "locking up" is the primary element of kidnapping. If the evidence does not

adequately prove this element, the accused cannot be held liable for kidnapping. In the present
case, the prosecution merely proved that appellant forcibly dragged the victim toward a place
only he knew. There being no actual detention or confinement, the appellant may be convicted
only
of
grave
coercion.
(People

-vs-

Astorga;

GGR

110097,

December

22,

1997)

DANGEROUS DRUGS ACT OF 1972 (R.A. NO. 6425); SECTIONS 15 AND 20 THEREOF
AS
AMENDED
BY
R.A.
NO.
7659.
In People vs. Martin Simon y Sunga, (G.R. No. 93028), decided on 29 July 1994, this Court
ruled as follows: (1) Provisions of R.A. No. 7659 which are favorable to the accused shall be
given retroactive effect pursuant to Article 22 of the Revised Penal Code. (2) Where the quantity
of the dangerous drug involved is less than the quantities stated in the first paragraph of Section
20 of R.A. No. 6425, the penalty to be imposed shall range from prision correccional to reclusion
temporal, and not reclusion perpetua. The reason is that there is an overlapping error, probably
through oversight in the drafting, in the provisions on the penalty of reclusion perpetua as shown
by its dual imposition, i.e., as the minimum of the penalty where the quantity of the dangerous
drugs involved is more than those specified in the first paragraph of the amended Section 20 and
also as the maximum of the penalty where the quantity of the dangerous drugs involved is less
than those so specified in the first paragraph. (3) Considering that the aforesaid penalty of prision
correccional to reclusion temporal shall depend upon the quantity of the dangerous drugs
involved, each of the component penalties thereof prision correccional, prision mayor, and
reclusion temporal shall be considered as a principal imposable penalty depending on the
quantity, such that the quantity of the drugs enumerated in the second paragraph should then be
divided into three, with the resulting quotient, and double or treble the same, as the bases for
determining the appropriate component penalty. (4) The modifying circumstances in the Revised
Penal Code may be appreciated to determine the proper period of the corresponding imposable
penalty or even to effect its reduction by one or more degrees; provided, however, that in no case
should such graduation of penalties reduce the imposable penalty lower than prision
correccional. (5) In appropriate instances, the Indeterminate Sentence Law shall be applied and
considering that R.A. No. 7659 has unqualifiedly adopted the penalties under the Revised Penal
Code with their technical signification and effects, then the crimes under the Dangerous Drugs
Act shall now be considered as crimes punished by the Revised Penal Code; hence, pursuant to
Section 1 of the Indeterminate Sentence Law, the indeterminate penalty which may be imposed
shall be one whose maximum shall be within the range of the imposable penalty and whose
minimum shall be within the range of the penalty next lower in degree to the imposable penalty.
With the foregoing as our touchstones, and it appearing that the quantity of the shabu recovered
from the accused in this case is only 0.0958 gram, the imposable penalty under the second
paragraph of Section 20 of R.A. No. 6425, as further amended by Section 17 of R.A. No. 7659,
should be prision correccional. Applying the Indeterminate Sentence Law, the accused may then
be sentenced to suffer an indeterminate penalty ranging from six (6) months of arresto mayor as
minimum
to
six
(6)
years
of
prision
correccional
as
maximum.

WHEN THEFT OF MOTOR VEHICLE IS QUALIFIED THEFT. (STRAY DECISION)

In this case, the stolen property is a Yamaha RS motorcycle bearing plate no. CZ-2932 with
sidecar valued at P30,000.00. Since this value remains undisputed, we accept this amount for the
purpose of determining the imposable penalty. In simple theft, such amount carries the
corresponding penalty of prision mayor in its minimum and medium periods to be imposed in the
maximum period. Considering that the penalty for qualified theft is two degrees higher than that
provided for simple theft, the penalty of prision mayor in its minimum and medium periods must
be raised by two degrees. Thus, the penalty prescribed for the offense committed of qualified
theft of motor vehicle is reclusion temporal in its medium and maximum periods to be imposed
in its maximum period. (PP -vs- Ricardo Dela Cruz alias Pawid, Manuel dela Cruz alias Pawid,
Danilo Dela Cruz and John Doe alias Henry Balintawak and Orlando Padilla y Mendoza,
Accused. RICARDO DELA CRUZ alias Pawid, Accused-Appellant. G.R. No. 125936 Feb. 23,
2000
)
PERIOD WHEN BAIL IS EFFECTIVE AFTER CONVICTION IN LOWER COURTS
The bail bond that the accused previously posted can only be used during the 15-day period to
appeal (Rule 122) and not during the entire period of appeal. This is consistent with Section 2(a)
of Rule 114 which provides that the bail "shall be effective upon approval and remain in force at
all stages of the case, unless sooner cancelled, until the promulgation of the judgment of the
Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it."
This amendment, introduced by SC Administrative Circular 12-94 is a departure from the old
rules which then provided that bail shall be effective and remain in force at all stages of the case
until its full determination, and thus even during the period of appeal.
Moreover, under the present rule, for the accused to continue his provisional liberty on the same
bail bond during the period to appeal, consent of the bondsman is necessary. From the record, it
appears that the bondsman, AFISCO Insurance Corporation, filed a motion in the trial court on
January 06, 1987 for the cancellation of petitioners' bail bond for the latter's failure to renew the
same upon its expiration. Obtaining the consent of the bondsman was, thus, foreclosed. ( Aniceto
Sabbun Maguddatu and Laureana Sabbun Maguddatu, Petitioners, -vs- Honorable COURT OF
APPEALS (Fourth Division and People of the Philippines, Respondents. G.R. No. 139599, Feb.
23,
2000)
WHEN

ABUSE

OF

SUPERIOR

STRENGTH

IS

PRESENT.

We find, however, that the aggravating circumstance of abuse of superior strength attended the
killing. "To appreciate abuse of superior strength as an aggravating circumstance, what should be
considered is not that there were three, four or more assailants of one victim, but whether the
aggressors took advantage of their combined strength in order to consummate the offense. It is
therefore necessary to show that the attackers cooperated in such a way as to secure advantage of
their
superiority
in
strength."
In this case, appellants and their companions purposely gathered together and armed themselves
to take advantage of their combined strength to ensure that Reynaldo Danao would be able to kill

the

victim

without

any

interference

from

other

bystanders.

However, not having been alleged in the Information, abuse of superior strength can only be
considered as a generic aggravating circumstance. (PP -vs- CIELITO BULURAN Y RAMIREZ
and LEONARDO VALENZUELA Y CASTILLO, Accused-Appellants. G.R. No. 113940, Feb.
15,
2000)
USE OF MOTOR VEHICLE AS QUALIFYING AGGRAVATING CIRCUMSTANCE
The use of a motor vehicle qualifies the killing to murder if the same was perpetrated by means
thereof. (PP -vs- THADEOS ENGUITO Defendant-Appellant. G.R. 128812, Feb. 28, 2000)
ELEMENTS

OF

EVIDENT

PREMEDITATION

(1) The time when the offender determined to commit the crime; (2) an act manifestly indicating
that the offender had clung to his determination; and (3) sufficient lapse of time between the
determination and the execution to allow the offender to reflect on the consequences of his act.
(PP -vs- ROGELIO GALAM, Accused-Appellant. G.R. No. 114740, Feb. 15, 2000)
WHEN

NIGHTTIME

IS

AGGRAVATING

Nighttime as an aggravating circumstance must have specially been sought to consummate the
crime, facilitate its success or prevent recognition of the felon. (PP -vs- CONSTANCIO
MERINO and ARNULFO SIERVO, Accused-Appellants. G.R. No. 132329, Dec. 17, 1999)
TREACHERY

IS

PRESENT

ON

SECOND

STAGE

OF

ACCIDENT

There is treachery when the offender commits any of the crimes against the person employing
means, methods or forms in the execution thereof which tend directly and specifically to insure
its execution without risk to himself arising form the defense which the offended party might
make. As earlier mentioned, the deceased was already rendered completely helpless and
defenseless when he was stabbed by Pedro Lumacang. Although he was able to run a short
distance, he had absolutely no means of defending himself from the three brothers who were
armed with hunting knives, bent on finishing him off. The wounded victim had not even so much
as a stick or a stone to parry off their blows. It should be noted, however, at this point that
inasmuch as treachery has been appreciated as a qualifying circumstance, abuse of superior
strength should not have been considered separately inasmuch as it is absorbed in treachery. (PP
-vs- PEDRO LUMACANG, PABLO LUMACANG and DOMINGO LUMACANG, AccusedAppellants.
G.R.
No.
120283,
Feb.
1,
2000)
WHY

DWELLING

IS

AGGRAVATING

"The home is a sort of sacred place for its owner. He who goes to another's house to slander him,
hurt him or do him wrong, is more guilty than he who offends him elsewhere." (PP -vs- JOSE &
NESTOR
BiAS,
Accused-Appellant.
G.R.
No.
121630,
Dec.
8,
1999)
EVEN

FRONTAL

ATTACK

WOULD

AMOUNT

TO

TREACHERY

Moreover, Milyn Ruales also testified that the knife used by accused was hidden from view.
Thus, Isabel Ruales was not prepared for such a violent attack, especially considering that, at the
time, she was unarmed and was burdened with a large basket filled with about six kilos of corn
and dried fish hanging from her shoulders and thus, could not have possibly warded off the blow
or run away from her assailant. Although Milyn Ruales described the attack having been frontal,
this does not negate treachery since the essence of treachery is the suddenness and
unexpectedness of the attack, giving the victim no opportunity to repel it or offer any defense of
his person. Thus, we hold that the trial court correctly appreciated the qualifying circumstance of
treachery. (PP -vs- CORNELIA SUELTO alias "ELY" alias "ROGELIA SUELTO", G.R. No.
126097,
Feb.
8,
2000)
DATE
OF
EFFECTIVITY
OF
RA
7659,
ETC.
Republic Act No. 7659 took effect on 31 December 1993. Accordingly, the said law only applies
to crimes defined therein, including rape, which were committed after its effectivity. It cannot be
applied retroactively because, to do so, would go against the constitutional prohibition on ex post
facto laws. For this reason, in order for the death penalty to be imposable, it is incumbent upon
the prosecution to establish beyond a shadow of doubt that the case of the accused is already
covered
by
Republic
Act
No.
7659.
AN EX POST FACTO LAW HAS BEEN DEFINED AS ONE WHICH
(a) makes criminal an act before the passage of the law and which was innocent when done, and
punishes
such
an
act;
(b) aggravate a crime, or makes it greater than it was, when committed;
(c) changes the punishment and inflicts a greater punishment than the law annexed to the crime
when
committed;
(d) alters the legal rules of evidence, and authorizes conviction upon less or different testimony
than the law required at the time of the commission of the offense;
(e) assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation
of
a
right
for
something
which
when
done
was
lawful;
and
(f) deprives person accused of a crime of some lawful protection to which he has become
entitled, such as the protection of a former conviction or acquittal, or a proclamation of amnesty.
(PP -vs- CHARITO ISUG MAGBANUA, G.R. No. 128888, Dec. 3, 1999)

ILLEGAL
(REPUBLIC

POSSESSION
ACT

OF
NO.

FIREARMS
8294)

SECTION 1. Section 1 Presidential Decree No. 1866, as amended, is hereby further amended to
read
as
follows:
"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms
or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. The penalty of prision correccional in its maximum period and a fine of not less
than Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as rimfire
handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition:
Provided,
That
no
other
crime
was
committed.
"The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos
(P30,000) shall be imposed if the firearm is classified as high powered firearm which includes
those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44,
.45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .
22 center-fire magnum and other firearms with firing capability of full automatic and by burst of
two or three: Provided, however, That no other crime was committed by the person arrested.
"If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed
firearm
shall
be
considered
as
an
aggravating
circumstance.
"If the violation of this Section is in furtherance of or incident to, or in connection with the crime
of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be absorbed as
an element of the crime of rebellion, or insurrection, sedition, or attempted coup d'etat.
"The same penalty shall be imposed upon the owner, president, manager, director or other
responsible officer of any public or private firm, company, corporation or entity, who shall
willfully or knowingly allow any of the firearms owned by such firm, company, corporation or
entity to be used by any person or persons found guilty of violating the provisions of the
preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or
firearms without any legal authority to be carried outside of their residence in the course of their
employment.
"The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed
firearm
outside
his
residence
without
legal
authority
therefor."
SECTION 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further amended
to
read
as
follows:
"SECTION 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of
Explosives. The penalty of prision mayor in its maximum period to reclusion temporal and a
fine of not less than Fifty thousand pesos (P50,000) shall be imposed upon any person who shall
unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle
grenade(s), and other explosives, including but not limited to 'pillbox,' 'molotov cocktail bombs,'

'fire bombs,' or other incendiary devices capable of producing destructive effect on contiguous
objects
or
causing
injury
or
death
to
any
person.
"When a person commits any of the crimes defined in the Revised Penal Code or special laws
with the use of the aforementioned explosives, detonation agents or incendiary devices, which
results in the death of any person or persons, the use of such explosives, detonation agents or
incendiary
devices
shall
be
considered
as
an
aggravating
circumstance.
"If the violation of this Section is in furtherance of, or incident to, or in connection with the
crime of rebellion, insurrection, sedition or attempted coup d'etat, such violation shall be
absorbed as an element of the crimes of rebellion, insurrection, sedition or attempted coup d'etat.
"The same penalty shall be imposed upon the owner, president, manager, director or other
responsible officer of any public or private firm, company, corporation or entity, who shall
willfully or knowingly allow any of the explosives owned by such firm, company, corporation or
entity, to be used by any person or persons found guilty of violating the provisions of the
preceding
paragraphs."
SECTION 3. Section 5 of Presidential Decree No. 1866, as amended, is hereby further amended
to
read
as
follows:
"SECTION 5. Tampering of Firearm's Serial Number. The penalty of prision correccional
shall be imposed upon any person who shall unlawfully tamper, change, deface or erase the serial
number
of
any
firearm."
SECTION 4. Section 6 of Presidential Decree No. 1866, as amended, is hereby further amended
to
read
as
follows:
"SECTION 6. Repacking or Altering the Composition of Lawfully Manufactured Explosives.
The penalty of prision correccional shall be imposed upon any person who shall unlawfully
repack, alter or modify the composition of any lawfully manufactured explosives."

SECTION 5. Coverage of the Term Unlicensed Firearm. The term unlicensed firearm shall
include:
1)
2)

firearms
unauthorized use

RULE ON
MAYBE

ILLEGAL

with
licensed

firearm

expired
in the

POSSESSION

OF

FIREARMS

of

license;
commission of
BEFORE

the

or
crime.

AN ACCUSED
CONVICTED

In crimes involving illegal possession of firearm, the prosecution has the burden of proving the
elements
thereof,
viz:
a.

the

existence

of

the

subject

firearm;

and

b. the fact that the accsused who owned or possessed it does not have the license or permit to
possess
the
same.
(People
v.
Castillo,
325
scra
613)
The essence of the crime of illegal possession is the possession, whether actual or constructive,
of the subject firearm, without which there can be no conviction for illegal possession.
After possession is established by the prosecution, it would only be a matter of course to
determine whether the accused has a license to possess the firearm. (People v. Bansil, 304 scra
384)
Possession of any firearm becomes unlawful only if the necessary permit or license therefor is
not first obtained. The absence of license and legal authority constitutes an essential ingredient of
the offense of illegal possession of firearm and every ingredient or essential element of an
offense must be shown by the prosecution by proof beyond reasonable doubt. Stated otherwise,
the negative fact of lack or absence of license constitutes an essential ingredient of the offense
which the prosecution has the duty not only to allege but also to prove beyond reasonable doubt.
(People
v.
Khor,
307
scra
295)
"To convict an accused for illegal possession of firearms and explosives under P.D. 1866, as
amended, two (2) essential elements must be indubitably established, viz: (a) the existence of the
subject firearm or explosive which may be proved by the presentation, of the subject firearm or
explosive or by the testimony of witnesses who saw accused in possession of the same, and (b)
the negative fact that the accused had no license or permit to own or possess the firearm or
explosive which fact may be established by the testimony or certification of a representative of
the PNP Firearms and Explosive Unit that the accused has no license or permit to possess the
subject
firearm
or
explosive."
(Del
Rosario
v.
People,
05/31/01)
We stress that the essence of the crime penalized under P.D. 1866 is primarily the accused's lack
of license or permit to carry or possess the firearm, ammunition or explosive as possession by
itself is not prohibited by law. (People v. Cortez, 324 scra 335, 344)
Illegal possession of firearm is a crime punished by special law, a malum prohibitum, and no
malice or intent to commit a crime need be proved. (People v. Lubo, 101 Phil. 179) To support a
conviction, however, there must be possession coupled with intent to possess (animus
possidendi)
the
firearm.
(Supra)
PRESENT
POSSESSION

MEANING

OF
OF

ILLEGAL
FIREARM

Unlicensed firearm no longer simply means a firearm without a license duly issued by lawful

authority. The scope of the term has been expanded in Sec.5 of R.A. 8294.
Thus, the unauthorized use of a weapon which has been duly licensed in the name of its
owner/possessor may still aggravate the resultant crime. In the case at bar, although appellants
may have been issued their respective licenses to possess firearms, their carrying of such
weapons outside their residences and their unauthorized use thereof in the killing of the victim
may be appreciated as an aggravating circumstance in imposing the proper penalty for murder.
(Pp.
V.
Molina;
Gr
115835-36;
July
22,
1998)
ILLEGAL
SPECIAL
IN

POSSESSION
OF
AGGRAVATING
CRIMES
OF

FIREARM

ONLY
CIRCUMSTANCE
HOMICIDE,
ETC.

Where murder or homicide was committed, the separate penalty for illegal possession shall no
longer be meted out since it becomes merely a special aggravating circumstance.
This statutory amendment may have been an offshoot of our remarks in Pp. V. Tac-an and Pp. V.
Quijada
:
Neither is the 2nd paragraph of Sec.1 meant to punish homicide or murder with death if either
crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as a
qualifying circumstance and not as an offense. That could not have been the intention of the
lawmaker because the term penalty in the subject provision is obviously meant to be the
penalty for illegal possession of firearm and not the penalty for homicide or murder. We
explicitly
stated
in
Tac-an
:
There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in
homicide or murder. Under an information charging homicide or murder, the fact that the death
weapon was an unlicensed firearm cannot be used to increase the penalty for the 2nd offense of
homicide or murder to death (or reclusion perpetua under the 1987 Constitution). The essential
point is that the unlicensed character or condition of the instrument used in destroying human life
or committing some other crime, is not included in the inventory of aggravating circumstances
set
out
in
Article
14
of
the
Revised
Penal
Code.
A law may, of course, be enacted making use of an unlicensed firearm as a qualifying
circumstance.
(People
v.
Molina;
GR
115835-36,
July
22,
1998)
NEW
FIREARM
OF

PENALTY
IN

FOR

LOW
ILLEGAL

POWERED
POSSESSION
FIREARMS

Petitioner, fortunately for him, is nonetheless not entirely bereft of relief. The enactment and
approval on 06 Jun 1997 of RA 8294, being favorable to him, should now apply. Under this new
law, the penalty for possession of any low powered firearm is only prision correccional in its

maximum

period

and

fine

of

not

less

than

P15,000.00.

Applying the Indeterminate Sentence Law, the present penalty that may be imposed is anywhere
from two years, four months and one day to four years and two months of prision correccional in
its medium period, as minimum, up to anywhere from four years, two moths and one day to six
years of prision correccional in its maximum period, as maximum.. The court in addition, may
impose a fine consistent with the principle that an appeal in a criminal case throws the whole
case open for review by the appellate tribunal. (Mario Rabaja v CA, et al., Oct 8/97)
ACTS

PUNISHABLE:

1. upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any
low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar
firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be
used
in
the
manufacture
of
any
firearm
or
ammunition
2. "If homicide or murder is committed with the use of an unlicensed firearm, such use of an
unlicensed
firearm
shall
be
considered
as
an
aggravating
circumstance.
3. "If the violation of this Section is in furtherance of or incident to, or in connection with the
crime of rebellion or insurrection, sedition, or attempted coup d'etat, such violation shall be
absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup
d'etat.
4. "The same penalty shall be imposed upon the owner, president, manager, director or other
responsible officer of any public or private firm, company, corporation or entity, who shall
willfully or knowingly allow any of the firearms owned by such firm, company, corporation or
entity to be used by any person or persons found guilty of violating the provisions of the
preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or
firearms without any legal authority to be carried outside of their residence in the course of their
employment.
5. The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed
firearm
outside
his
residence
without
legal
authority
therefor
6. Any person who shall unlawfully tamper, change, deface or erase the serial number of any
firearm.
7. Any person who shall unlawfully repack, alter or modify the composition of any lawfully
manufactured
explosives.

MALUM

PROHIBITUM

The offense of illegal possession of firearm is a malum prohibitum punished by a special law, in
which case good faith and absence of criminal intent are not valid defenses. (People v De Gracia,
7/6/94)
1. Manufacture, deal in, acquire, dispose or possess. It is these acts relative to firearms. The
obvious underlying principle is the undesirability of the proliferation of firearms and their free
traffic and possession. This is clear from the first two whereas clause of P.D. 1866. It is then
clear that illegal possession, etc. is a malum prohibitum. For purpose of simplicity we will
confine our analysis to possession, although what we will discuss hereunder applies to
manufacture,
dealing
in,
acquiring
or
disposing
as
well.
1.1. it is not correct to say without qualification that intent is immaterial. Intent as to
possession is immaterial. Intention to possess is material. Whatever the purpose of the possession
may be is consistently immaterial. That one was in possession of an unlicensed firearms merely
for ones protection without intending harm on anybody is a fruitless defense. It is the clear
doctrine of such cases as People v. de la Rosa, 284 SCRA 158 that mere possession without
criminal intent is sufficient on which to render a judgment of conviction.
1.2. HOWEVER, possession must be established beyond reasonable doubt, and in view of the
special meaning that possession has in criminal law, discovery by police, officers alone of a
firearmin the baggage or gloves compartment of a car will not necessarily be sufficient to sustain
a conviction of the car owner or driver. Essential to the legal concept of possession in illegal
possession cases is animus possidendio. (People v. de la Rosa, supra; People v. Sayang, 110 Phil
565).
1.3. How is animus possidendi established? There must be proved either by direct or
circumstantial evidence the intent of the accused to possess, or to keep the firearm.
a.) Animus Possidendi is determined by recourse to overt acts prior to or simultaneous with
possession and other surrounding circumstances. (People v. de la Rosa) when it is established
that the accused purchased the weapon in question, a good case for animus possidendi is made.
b.)Animus possidendi may also be inferred from the fact that an unlicensed firearms was under
the apparent control and power of the accussed. (People v. Verches, 33 SCRA 174)
c.) People v. de Guzman, G.R. 117952-53 (February 14, 2001) holds that the gravamen for the
offense of violation of P.D.1866 is the possession of firearm without the necessary permit and/or
license. The crime is immediately consummated upon mere possession of a firearm devoid of
legal authority, since it is assumed that the same is possed with animus possidendi Does it then
follow that everyone found with the firearm is in possession thereof for the purpose of
prosecution and conviction under P.D. 1866 as amended by R.A. 8294? The results would be
patently
absurd.
h. A person who finds a firearms and takes it with him to the police station for the purpose of
turning it over to the police should be commended, rather than prosecuted.
ii. A person who is stopped at a check-point at which it is discovered that there is firearms
placed either advertently or inadvertently in his baggage compartment without his knowledge cannot
be
held
liable
for
illegal
possession.
iii. If the offender was in possession of an unlicensed only on the occasion of the shooting for
transitory purpose and for the short moment in connection with the shooting, the Supre Court

held in People v. Macasling, 237 SCRA 299 that there was no evidence of animus possidendi.
iv. It then appears to be the more reasonable position that where a person is apprehended with an
unlicensed weapon, animus possidendi will be disputably presumed. The accused may controvert
the presumption of animus possidendi. To convict, the court needs proof beyond reasonable
doubt
of
animus
possidendi.

1.4 What the prosecution must prove for it to succeed under the law is two-fold: first, the
existence of the firearm; second, the absence of a license or a permit to possess. (People v.
Rugay,
291
SCRA
692)
a.) To prove the existence of the firearm, it is not absolutely necessary that the object evidence be
presented. It is very well possible that the accused effectively conceals the weapon before his
apprehension. Incontrovertible testimonial evidence may successfully established the existence
of the firearm. (People v. Narvasa, G.R. 132878 [November 16, 1998]),
b.) An interesting question arises. The present law makes penalties depend on the caliberof the
firearm, i.e, on whether it is high-powered or low-powered In People v. Gutierrez, G.R. 132878
(January 18, 1999) the Supreme Court ruled that a U.S. carbine M1 caliber .30 was highpowered because it was capable of ejecting more than one bullet in one squeeze. If it is the
criterion, then logically, caliber can be established by teetimony establishing the manner in
which the firearm ejected bullets. The distinguishing features of particularly firearms,
furthermore, that may be recited by keen observer sworn in a s witness my identify the firearm as
well as it caliber. This can be established by a judicious combination of the testimonial evidence
of
observers
abd
experts.
c.) A firearm is unlicensed when a certification from the Firearms and Explosives Unit attests
that no license has been issued. There will still be a case for illegal possession if one holding a
firearm duly licensed carr
es it outside his residence when he has no permit to carry it outside his residence (Pastrano v.
Court of Appeals, 281 SCRA 287). A fortiori, the use of a licensed firearm by one not licensed or
permitted
to
use
it
would
still
be
illegal
possession.
d.) A security guard employed by a security agency and issued a firearm by the agency has the
right to assume that the firearm issued to him is a licensed firearm. If it turns out that the firearm
is not licensed, there is no animus possidendi of an unlicensed firearm. (Cuenco v. People, 33
SCRA 522). The case is obviously different, however, if a police officer leaves with a cousin for
safekeeping his firearm. The cousin knows fully well that he has no permit or authority to keep
the firearm. If he accepts to do this favor, he is indictable. (People v. Sayong, 110 Phil 565)
2. Provided no other crime is committed. It is this proviso in the amendatory law that has visited
countless woes on numerous judges and has occasioned not easily reconcilable decisions by the
Supreme Court .it is obviously a case of not only poor but miserable draftsmanship!
2.1 It is clear that where there is no other offense except the unlawful possession of a firearm, the

penalties provided for in the amended Section 1 shall be imposed: prision correccional in its
maximum period for low-powered firearms, and prision mayor in its maximum periods for highpowered firearms. Thus in People v. Nunez, G.R. 112092 (March 1, 2001) holds that a person
may be convicted of simple illegal possession if the illegal possession is proved and the
frustrated murder and murder case involving the use of the illegal possession has not been
sufficiently proved. People v. Avecilla, G.R. 117033 (February 15, 2001) teaches that the crime
of illegal possession of firearms, in its simple form, is committed any of the crimes of murder,
homicide,
rebellion,
insurrection,
sedition
or
attempted
coup
detat.
2.2. It is also clear that where either homicide or murder is committed with the use of an
unlicensed firearm, such use shall constitute an aggravating circumstances. It is well known
that R.A. 8294 was initiated by Senator Ramon Revilla as a favor to his friend Robin Padilla who
was then serving sentence for illegal possession. It was therefore meant to be more benevolent,
as it is in the penalties it impose. Senator Revilla, however, could not see far enough (and
regrettably neither could other legislators) and the effect at least in the case of murder is that it
may send the accused to the lethal injection chamber where otherwise he would not be meted out
the death penalty. People v. Montinola, G.R. 131856-57 (July 1, 2001) with the Chief Justice
himself as ponente illustrates the complication the law has introduced. In this case, the accused
had been charged with two offenses: robbery with homicide and illegal possession of firearms.
During the pendency of the case, the amended law came into force. The court then held that
insofar as R.A. 8294 was favorable to the accused in that it spared him from separate prosecution
for illegal possession, the charge for illegal possession was dropped. Insofar, however, as it
increased the penalty for robbery with homicide, the aggravating circumstances of the use of
unlicensed weapon could not be appreciated. Rule 110, Section 9 of the Revised Rules of
Criminal Procedure will apply: As an aggravating circumstances, the use of the unlicensed
weapon
must
be
alleged
in
the
information.
2.3 When the violation of the law penalizing unlicensed weapon is in furtherance of or incident
to, or in connection with the crimes of rebellion, insurrection, sedition or attempted coup detat
then the violation is absorbed in the main offense. (R.A. 8294, Section 1).
2.4 What happens when an unlicensed weapon is used in the commission of other offenses other
that homicide, murder, rebellion, insurrection, sedition or attempted coup d etata? People v.
Walpandladjaalam, G.R. 1361149-51 ( September 19, 2000) provides the answer in the
distinctively clear language of Justice Panganiban: The law is clear: the accused can be
convicted of simple illegal possession of firearms, provided that no other crime was committed
by the person arrested. If the intention of the law in the second paragraph were to refer only to
homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily,
where the law does not distinguish, neither should we. In brief, where the accused commits a
crime other than those enumerated with the use of an unlicensed weapon, no separate charge for
such use will be brought against him. Consistent with this is the disposition by the Supreme court
decreed: Accordingly, all pending cases for illegal possession of firearms should be dismissed if
they arose from the commission of crimes other than those indicated in Section 1 and 3 of R.A.
8294.
2.5 Clearly the law leads to absurd results, for when the use of an unlicensed weapon attends the

commission of a crime, no matter how trivial, the case of illegal possession recedes into judicial
irrelevance. The matter is definitely one that calls for a curative statute and the Supreme Court
has referred the matter to the Congress for another look. One moral lesson can be learned: Laws
passed
as
favor
to
ones
friend
is
a
poor
laws!
OWNERSHIP
ELEMENT

IS
OF

NOT

AN

ESSENTIAL
POSSESSION

ILLEGAL

The rule is that ownership is not an essential element of illegal possession of firearms and
ammunition. What the law requires is merely possession which includes not only actual physical
possession but also constructive possession or the subjection of the thing to ones control and
management.
INTENT

TO

POSSESS,

OR

ANIMUS

POSSIDENDI

IS

ESSENTIAL

A distinction should be made between criminal intent and intent to possess. While mere
possession without criminal intent is sufficient to convict a person for illegal possession of
firearms, it must still be shows that there was animus possidendi or an intent to possess on the
part
of
the
accused.
There is no evidence of animus possedendi if the offender was in possession of an unlicensed
firearm only on the occasion of the shooting for a transitory purpose and for the short moment in
connection
with
the
shooting.
Lack of evidence is an essential element of the crime and that the same must be alleged in the
Information
and
duly
proved.
(People
-vsMacasling,
237
SCRA
299)
Ownership of the gun is immaterial or irrelevant in violation of PD 1866, as amended. One may
be convicted of possession of an unlicensed firearm even if he is not the owner thereof.
(People
-vsReynaldo
Cruz,
GR
No.
76728,
August
3,
1988)
Even if the gun is "paltik," there is a need to secure license for the gun, and if found without any
license
therefor,
the
offender
is
liable
for
violation
of
PD
1866.
(People
vsFilemon
Ramos,
222
SCRA
557)
If an unlicensed firearm is used to commit a crime other than homicide or murder, such a direct
assault with attempted homicide, the use of an unlicensed firearm is neither an aggravating
circumstances nor a separate offense. Since the law uses the word Homicide or Murder,
possession of an unlicensed firearm is not aggravating in Attempted Homicide.
(People
-vsWalpan
Ladjaamlam,
et
al.,
GR
No.
136149-51,
September
19,
2000)

Where the accused was charged of Murder and violation of PD 1866 and that, in the meantime,
Republic Act 8294 took effect, the accused should be convicted only of Murder. The use of
unlicensed firearm should not be considered as aggravating because the Court will have to
impose the death penalty which cannot be allowed because, at the time of the commission of the
offense, the death penalty cannot as yet, be imposed. However, in his concurring opinion, Chief
Justice Hilario Davide, Jr. declared that, under such a factual milieu, the charge of violation of
PD 1866 should continue and if the accused is found guilty, he should be meted the death penalty
under
Republic
Act
8294.
(People
-vsVictor
Macoy,
GR
No.
126253,
August
16,
2000)
Where the prosecution failed to adduce the gun in evidence coupled with the fact that per
Certification of the FEU, " no available information regarding the license for the gun and the
inconsistency in the evidence of the prosecution, the latter failed to discharge its burden.
(People
-vsRicolito
Rugay,
et
al.,
291
SCRA
692)
Mere possession without criminal intent is sufficient on which to render a judgment of
conviction for violation of PD 1866, as amended. However, there must be animus possedendi or
intent to possess without any license or permit. Good faith is not a defense. Neither is lack of
criminal
intent.
(People
-vsRodolfo
Dela
Rosa,
et
al.,
284
SCRA
158)
Temporary, incidental, casual or harmless possession of firearm is not punishable. Hence,
stealing a firearm to render the owner defenseless is not a crime under the law. (idem, supra)
Possession includes actual physical possession and constructive possession. The animus can be
determined from the overt acts of the accused prior to or coetaneous with and other surrounding
circumstances of such possession. Hence, where the accused found a gun and was on his way to
deliver the gun to the police authority and was arrested, in the process, there is no animus
possedendi.
(People
-vsRodolfo
Dela
Rosa,
et
al.,
supra)
Even if a paltik is a homemade gun and thus illegally manufactured nevertheless, the Prosecution
is burdened to prove that the accused has no license for the gun.
(People
-vsFelimon
Ramos,
et
al.,
222
SCRA
557)
For the accused to be guilty of violation of PD 1866 as amended the Prosecution must prove: (a)
the existence of the subject firearm; (b) the fact that the accused who owned or possessed the
firearm does not have the corresponding license or permit to possess the same.
(People
-vsRicolito
Rugay,
et
al.,
291
SCRA
692)
Where the accused is convicted of violation of Republic Act 8294 and meted a penalty less than
six (6) years, and a fine of P15,000.00, he should be ordered to undergo subsidiary imprisonment
in
case
of
insolvency.
(Mario
Rabaja
-vsCourt
of
Appealss,
et
al.,
280
SCRA
290)

In the light of "People -vs- Martin Simon," 234 SCRA 555, and Articles 13 and 14, in relation to
Article 63, of the Revised Penal Code and the Indeterminate Sentence Law for violation of the
Revised Penal Code may now be applied for violation of PD 1866, as amended and Rep[ublic
Act
6425,
as
amended.
Even if a person is licensed to possess a firearms but brings out firearm outside of his residence
without permit therefor, he is guilty of violation of the last paragraph of Section 1 of PD 1866, as
amended. A Mission Order cannot take the place of a license. A Mission Order can only be
issued
to
one
licensed
to
possess
a
firearm.
(Pedrito
Pastrano
-vsCourt
of
Appeals,
et
al.,
281
SCRA
287)
If the accused borrowed a gun from another who is licensed to possess firearm, may the former
be liable for violation of PD 1866, as amended? Yes. Even if the gun is licensed to one and lends
it to another, the latter is liable for violation of PD 1866, as amended. A license to possess a
firearm and a permit to carry a licensed firearm outside of his residence is not transferable.
(Pedrito
Pastrano
-vsCourt
of
Appeals,
et
al.,
supra)
Even if the firearm subject of the crime is not adduced in evidence one may still be convicted of
possession of an unlicensed firearm as long as proof was adduced that the acused was in
possession
of
a
firearm.
(People
-vsFelicisimo
Narvasa,
GR
No.
128618,
November
16,
1998)
NOTE: Under Republic Act 8294, the penalty depends upon the caliber of the gun. Suppose
there
is
no
testimony
as
to
the
caliber
of
the
gun?
Where a security guard was given by his employer, a security agency, a firearm, and the accused
assumed that the employer secured the license for the firearm but that it turned out that the
employer failed to get any license, the security guard is not criminally liable. The security guard
has the right to assume that the security agency secured the license.
(Ernesto
Cuenca
-vsPeople,
33
SCRA
522)
If a constabulary soldier entrusted his gun to the accused for safekeeping and later the accused
found in possession of the gun, the accused is guilty of possession of unlicensed firearm. To
exculpate himself, the accused must prove absence of animus possidendi.
(People
-vsPerlito
Soyang,
et
al.,
110
Phil.
565,
583)
A secured a loan from B and pledged his unlicensed firearm as security for the loan. A promised
to pay his loan and retrieve the firearm as soon as he had money. B found in possession of the
unlicensed firearm. For the court to sustain the contention of B is to authorize the indefinite
possession by B of the unlicensed firearm because there was no way to determine when A could
pay
his
account.
(People
-vsCornelio
Melgas,
100
Phil.
298)
If a licensed firearm if used to commit Murder or Homicide, such circumstances is merely a
special aggravating circumstance which must be alleged in the Information and cannot be offset

by any mitigating circumstance. (People -vs- Meriato Molina, et al., G.R. No. 115835, July 22,
1998;
People
-vsNarvasa,
G.R.
no.
128618
November
18,
1998)
The Decision of the Supreme Court in People -vs- Paterno Tac-an, 182 SCRA 601; People -vsJesus Deunida, and People -vs- Barros and People -vs- Daniel Quijada 259 SCRA 191 had been
overtaken
by
Republic
Act
8294.
Under the amendment, the death penalty may now be imposed if the accused is convicted of
Murder
with
the
use
of
licensed
or
unlicensed
firearms.
As long as the accused is proved to have been in possession of the unlicensed firearm even if the
firearm is not adduced in evidence, conviction under the law is proper.
(People
-vsFelicisimo
Narvasa,
supra)
Republic

Act

8294

took

effect

on

July

6,

1997.

If the accused is charged of Murder and violation of PD 1866 and during the trial, Republic Act
8294 took effect, the accused cannot be convicted of violation of PD 1866, as amended. Neither
should the possession of an unlicensed firearm be considered as an aggravating circumstance as
it will be less favorable to the accused. If the accused used a sumpak to kill the victim, the
prosecution must prove that he had no license or permit to possess the sumpak.
(People
-vsCipriano
de
Vera,
G.R.
No.
121462-63,
June
9,
1999)
Compare "People -vs- Wilfredo Filoteo," 290 SCRA 627 where the accused was convicted of
Murder and violation of PD 1866 and during the pendency of the appeal, Republic Act 8294 took
effect. Our Supreme Court affirmed the conviction of the Accused of two (2) crime of Homicide
and violation of PD 1866, as amended, and applied the penalty for the crimes under the
amendment.
In "People -vs- Veriato Molina, et al.," 292 SCRA 742, our Supreme Court En Banc declared that
where the accused was convicted of said crio,es, by the Trial Court but that during the pendency
of the appeal, with the Supreme Court, Republic Act 8294 took effect, the accused should only
be convicted of Murder with the use of an unlicensed firearm as mere a special aggravating
circumstance.
Murder, under Republic Act 8294, is used in its generic term and, hence, includes Parricide
(People
versus
Octavio
Mendoza,
GR
No.
109270-80,
January
18,1999)
A United States carbine M1, caliber .3-0 is a high-powered gun because it is capable of emitting
two
or
three
bullets
in
one
squeeze.
(People
-vsEduardo
Gutierrez,
GR
No.
132878,
September
1999)

It is not necessary that the firearm be produced and offered in evidence for Republic Act 8294 to
apply. It is not enough that there is evidence of the existence of the gun which can be established
either
by
testimony
or
presentation
of
the
gun
itself.
Possession of an unlicensed firearm and used in killing is a special aggravating circumstance.
(People
-vsFelicisimo
Narvasa,
GR
No.
128618,
November
18,
1998)
The Decision of the Supreme Court in People versus Rex Bergante, et. al., GR No. 120369,
February 27, 1998, that the use of an unlicensed firearm to commit murder is only a generic
aggravating
circumstance
is
no
longer
true.
Possession under the law may either be actual physical possession or constructive possession.
However, although the crime under PD 1866, as amended, is malum prohibitum, however, there
must be animus possidendi, or intent to possess. Animus possidendi may be inferred from the
fact that an unlicensed firearm is under the apparent control and power of the accused. however,
animus possidendi may be contradicted if a person in possession of an unlicensed firearm does
not
assert
a
right
thereto.
If the possession of an unlicensed gun is merely temporary, incidental or transient, the same is
not punishable under PD 1866. However, the law does not provide for a fixed period of time for
one to be deemed in "possession" of an unlicensed firearm. (People -vs- Rolando Verches, 233
SCRA
174).
Each
factual
milieu
must
be
considered.
IMPLICATION BY RA 8294 ON PD 1866 (ILLEGAL POSSESSION OF FIREARMS)
P.D. 1866, which codified the laws on illegal possession of firearms, was amended on June 6,
1997 by Republic Act 8264. Aside from lowering the penalty for said crime, R.A. 8294 also
provided that if homicide or murder is committed with the use of an unlicensed firearm, such use
shall be considered as a special aggravating circumstance. This amendment has two (2)
implications: first, the use of an unlicensed firearm in the commission of homicide or murder
shall not be treated as a separate offense, but merely as a special aggravating circumstance;
second, as only a single crime (homicide or murder with the aggravating circumstance of illegal
possession of firearm) is committed under the law, only one penalty shall be imposed on the
accused.
Prescinding therefrom, and considering that the provisions of the amendatory law are favorable
to herein appellant, the new law should be retroactively applied in the case at bar. It was thus
error for the trial court to convict the appellant of two (2) separate offenses, i.e., Homicide and
Illegal Possession of Firearms, and punish him separately for each crime. Based on the facts of
the case, the crime for which the appellant may be charged is homicide, aggravated by illegal
possession of firearm, the correct denomination for the crime, and not illegal possession of
firearm, aggravated by homicide as ruled by the trial court, as it is the former offense which
aggravates
the
crime
of
homicide
under
the
amendatory
law.

EVEN IF ACCUSED ADMITTED THAT HE HAS NO LICENSE, SUCH ADMISSION IS

NOT
SUFFICIENT
PROOF
OF
ILLEGAL
POSSESSION
OF
FIREARM
Hence, in the case at bar, although the appellant himself admitted that he had no license for the
gun recovered from his possession, his admission will not relieve the prosecution of its duty to
establish beyond reasonable doubt the appellant's lack of license or permit to possess the gun. In
People
vs.
Solayao,
we
expounded
on
this
doctrine,
thus:
"x x x by its very nature, an admission is the mere acknowledgement of a fact or of
circumstances from which guilt may be inferred, tending to incriminate the speaker, but not
sufficient of itself to establish his guilt." In other words, it is a statement by defendant of fact or
facts pertinent to issues pending, in connection with proof of other facts or circumstances, to
prove guilt, but which is, of itself, insufficient to authorize conviction. From the above
principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond
doubt
the
commission
of
the
crime
charged.
"Moreover, said admission is extrajudicial in nature. As such, it does not fall under Section 4 of
Rule
129
of
the
Revised
Rules
of
Court
which
states:
An admission, verbal or written, made by a party in the course of the trial or other proceedings in
the
same
case
does
not
require
proof.
"Not being a judicial admission, said statement by accused-appellant does not prove beyond
reasonable doubt the second element of illegal possession of firearm. It does not even establish a
prima facie case. It merely bolsters the case for the prosecution but does not stand as proof of the
fact of absence or lack of a license." (emphasis supplied) (PP -vs- JULIAN CASTILLO Y
LUMAYRO,
G.R.
No.
131592-93,
Feb.
15,
2000)
ELEMENTS
OF
ILLEGAL
POSSESSION
OF
FIREARMS
To convict an accused for illegal possession of firearms and explosive under P.D. 1866 as
amended, two (2) essential elements must be indubitably established, viz: (a) the existence of the
subject firearm or explosive which may be proved by the presentation of the subject firearm or
explosive or by the testimony of witnesses who saw accused in possession of the same, and (b)
the negative fact that the accused had no license or permit to own or possess the firearm or
explosive which fact may be established by the testimony or certification of a representative of
the PNP Firearms and Explosives Unit that the accused has no license or permit to possess the
subject
firearm
or
explosive.
In the case at bar, the prosecution failed to prove the second element of the crime, i.e., the lack of
license or permit of appellant Cortez to possess the hand grenade. Although the hand grenade
seized by PO2 Santos from appellant was presented in court, the records bear that PO2 Santos
did not submit the grenade to the PNP Firearms and Explosives Unit for verification. This
explains why no certification or testimony was adduced by the prosecution at the trial to prove
that appellant Cortez was not licensed to possess the explosive. The failure of the prosecution to
adduce this fact is fatal to its cause. We stress that the essence of the crime penalized under P.D.
1866 is primarily the accused's lack of license or permit to carry or possess the firearm,

ammunition

or

explosive

as

possession

by

itself

is

not

prohibited

by

law.

MAY
EXPLOSIVES
BE
GIVEN
A
PERMIT
OR
LICENSE?
In the case of an explosive, a permit or license to possess it is usually granted to mining
corporations, military personnel and other legitimate users. (PP -vs- BERNIE CORTEZ Y
NATANIO,
ET
AL.,
G.R.
Nos.
131619-20,
Feb.
1,
2000)
UNDER R.A. 8294 A SEPARATE CONVICTION FOR ILLEGAL POSSESSION OF
FIREARMS
AND
FOR
HOMICIDE
IS
NOT
ALLOWED
With respect to the conviction of accused-appellant for illegal possession of firearms under P.D.
No. 1866, it was held in the case of People vs. Molina and reiterated in the recent case of People
vs. Ronaldo Valdez, that in cases where murder or homicide is committed with the use of an
unlicensed firearm, there can be no separate conviction for the crime of illegal possession of
firearms under P.D. No. 1866 in view of the amendments introduced by Republic Act No. 8294.
Thereunder, the use of unlicensed firearm in murder or homicide is simply considered as an
aggravating circumstance in the murder or homicide and no longer as a separate offense.
Furthermore, the penalty for illegal possession of firearms shall be imposed provided that no
crime is committed. In other words, where murder or homicide was committed, the penalty for
illegal possession of firearms is no longer imposable since it becomes merely a special
aggravating circumstance. (PP -vs- AUGUSTO LORETO RINGOR, JR., G.R. No. 123918, Dec.
9, 1999)
DANGEROUS
(Republic

DEFINITIONS

DRUG
Acts

ACT

OF
No.

OF

2002
9165)

TERMS

Chemical Diversion the sale, distribution, supply or transport of legitimately imported, in-transit,
manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures or in
concentrated form, to any person or entity engaged in the manufacture of any dangerous drug, and shall
include packaging, repackaging, labeling, relabeling or concealment of such transaction through fraud,
destruction of documents, fraudulent use of permits, misdeclaration, use of front companies or mail fraud.
Controlled Delivery The investigative technique of allowing an unlawful or suspect consignment of any
dangerous drug and/or controlled precursor and essential chemical, equipment or paraphernalia, or
property believed to be derived directly or indirectly from any offense, to pass into, through or out of the
country under the supervision of any unauthorized officer, with a view to gathering evidence to identify
any person involved in any dangerous drug related offense, or to facilitate prosecution of that offense.
Controlled Precursor and Essential Chemicals Includes those listed in Tables I and II of the 1988 UN
Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances as enumerated in the
attached
annex,
which
is
an
integral
part
of
this
Act.
Drug Dependence As based on the World Health Organization definition, it is a cluster of physiological,
behavioral and cognitive phenomena of variable intensity, in which the use of psychoactive drug takes on

a high priority thereby involving, among others, a strong desire or a sense of compulsion to take the
substance and the difficulties in controlling substance-taking behavior in terms of its onset, termination,
or
levels
of
use.
Drug Syndicate Any organized group of two (2) or more persons forming or joining together with the
intention
of
committing
any
offense
prescribed
under
this
Act.
Illegal Trafficking 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.
Protector/Coddler Any person who knowingly and willfully consents to the unlawful acts provided for
in this Act and uses his/her influence, power or position in shielding, harboring, screening or facilitating
the escape of any person he/she knows, or has reasonable ground to believe on or suspects, has violated
the provision of this Act in order to prevent the arrest, prosecution and conviction of the violator.
Pusher 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
of
such
transaction,
in
violation
of
this
Act.
Planting of evidence the willful act by any person of maliciously and surreptitiously inserting, placing,
adding or attaching directly or indirectly, through any overt or covert act whatever quantity of 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
this
Act.

What
that

are

the

significant

Provisions
been

have

in

R.A.

6425
changed?

1. Under this Act there is no more distinction between prohibited drug and regulated drugs and/or
controlled precursors and essential chemicals enumerated in Tables I and II of the 1988 UN Convention
against
Illicit
Traffic
in
Narcotic
Drugs
and
Psychotropic
Substances.
2. The penalties provided by R.A. 7659 was changed , adopting partially the penalties in R.A. 6425.
3. In planting evidence any person now maybe held liable. Before, only law enforcement agents.
4. the provisions of the Revised Penal Code have no suppletory effect except for minors who may be
sentenced
to
reclusion
perpatua.

What
that

are
are

the

new
included

kinds
in

of
R.A.

drugs
9165?

Methylenedioxymethamphetamine (MDMA) or commonly known as Ecstasy, or its any other name

which refers to the drugs having such chemical composition, including any of its isomers or derivatives in
any form. 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 requirement, as determined and promulgated by the Board in accordance to Section
93,
Art
XI
of
this
Act
of
R.A.
9165.

ACTS

PUNISHABLE

UNDER

THE

LAW

1.) Importation of 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 thereform even for floral, decorative
and
culinary
purposes.
2.)
Importation
of
any
controlled
precursor
and
essential
chemical.
3.) Importation of any dangerous drug and/or controlled precursor and essential chemical through the use
of a diplomatic passport, diplomatic facilities or any other means involving his/her official status intended
to
facilitate
the
unlawful
entry.
4.) Organizing, managing, or acting as a financier of any of the illegal activities penalized under
Section
4
of
the
Law.
5.) Acting as protector/coddler of anyone who violates Section 4 of the Law.
6.) Sale, trading, administration, dispensation, distribution and transportation of dangerous drugs,
regardless of quantity and purity involved, or acting as a broker in any of such transactions.
7.) Sale, trading, administration, dispensation, distribution and transportation of any controlled precursor
and
essential
chemical,
or
acting
as
a
broker
in
such
transaction.
8.) Use by drug pushers of minors or mentally incapacitated individuals as runners, couriers and
messengers, or in any other capacity directly connected to the trade of dangerous drugs and/or controlled
precursor
and
chemicals.
9.) Acting as a protector/coddler of any violator of the provision of Sec. 5.
10.) Maintenance of a Den, Dive or Resort where any dangerous drug is used or sold in any form.
11.) Maintenance of a Den, Dive or Resort where any controlled precursors and essential chemical is used
or
sold
in
any
form.
12.) Acting as protector/coddler of a maintainer of a Den, Dive, or Resort
13.)
Employees
and
Visitors
of
a
Den,
Drive,
or
Resort
14.) Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals
15.)
Acting
as
a
protector
or
coddler
of
any
violator
of
Sec.
8
16.) Illegal Chemical Diversion of Controlled Precursor and Essential Chemicals.
17.) Manufacture or Delivery of Equipment, Instrument, Apparatus, and other Paraphernalia for
Dangerous
Drugs
and/or
Controlled
Precursors
and
Essential
Chemicals.
18.)
Possession
of
Drug.
19.) Possession of equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs
20.) Possession of Dangerous Drugs During Parties, Social Gathering or Meetings.
21.) Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs

during
Parties,
Social
Gathering
or
Meetings.
22.)
Use
of
Dangerous
Drugs.
23.) Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources thereof.
24.) Maintenance and keeping of Original Records of Transaction on Dangerous Drugs and/or Controlled
Precursors
and
Essential
Chemicals
25.
Unnecessary
Prescription
of
Dangerous
Drugs
26.)
Unlawful
Prescription
of
Dangerous
Drugs
27.) Attempt or Conspiracy to commit the following unlawful acts: (a) Importation of any dangerous
drugs and/or controlled precursor and essential chemical; (b) Sale, trading, administration, dispensation,
delivery, distribution, and transportation of any dangerous drug and/or controlled precursor and essential
chemical; (c) Maintenance of a den, dive, or resort where dangerous drugs is used in any form; (d)
Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and (e)
Cultivation
or
culture
of
plants
which
are
sources
of
dangerous
drugs.

CRIMINAL
LIABILITY
OF
ALIENS,
OFFICERS
OF PARTNERSHIP, CORPORATION, ASSOCIATIONS, OR OTHER JURIDIUCAL ENTITIES
1. In addition to the penalties prescribed in the unlawful act committed, any alien who violates such
provisions of the Law, after service of sentences, shall be deported immediately without further
proceedings,
unless
the
penalty
is
death.
2. In case the violation of the Law is committed by a partnership, corporation, association or any juridical
entity, the partner, president, director, manager, trustee, estate administrator, or officer who consents to or
knowingly tolerates such violation shall be held criminally liable as co-principal.
3. The penalty provided for the offense under the Law shall be imposed upon the partner, president,
director, manager, trustee, estate administrator, or officer who knowingly authorizes, tolerates, or consents
to the use of a vehicle, vessel, aircraft, equipment or other facility as an instrument in the importation,
sale, trading, administration, dispensation, delivery, distribution, transportation, or manufacture of
dangerous drugs, or chemical diversion, if such vehicle, aircraft, equipment or other instrument is owned
by or under the control or supervision of the partnership, corporation, association or juridical entity to
which
they
are
affiliated.

CRIMINAL

LIABLITY

OF

PUBLIC

OFFICERS

OR

EMPLOYEES

1. Any public officer or employee who (1) misappropriates, (2) misapplies or (3) fails to account for
confiscated, seized or surrendered 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 punished under the Law shall be penalized with life
imprisonment to death and a fine ranging fromP500,000.00 to P10,000,000.00 and with perpetual
disqualification
from
any
public
office
(Sec.27).
2. Any government official or employee found guilty of the unlawful acts punished under the Law shall

be imposed the maximum penalties provided for the offense and shall be absolutely perpetually
disqualified
from
holding
any
public
office.
(Sec.
28).

CRIMINAL LIABILITY OF ELECTIVE LOCAL OR NATIONAL OFFICIALS WHO BENEFITS

FROM DRUG TRAFFICKING whether or not he know that it came from drugs, but the one who gave
must
be
convicted
first
by
final
judgment.
1. Any elective local or national official found to have (1) benefited from the proceeds of the trafficking
of dangerous drugs as prescribed in the Law, or has (2) received any financial or material contributions or
donations from natural or juridical persons found guilty of trafficking dangerous drug as prescribed in the
law, 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
(\sec.27)

CRIMINALLIABILITY

OF

PRIVATE

INDIVIDUAL

2. Any person found guilty of planting any dangerous drug and/or controlled precursor and essential
chemical, regardless of quantity and purity, shall be punished with death. (Sec. 29).
3. Any person violating any regulation issued by the Dangerous Drug Board shall be punished with
imprisonment ranging from 6 months and 1 day to 4 years and a fine ranging from P10,000.00 to
P50,000.00 in addition to the administrative sanction which may be imposed by the Board (Sec. 32)

CRIMINAL
PLANTING

LIABILITY
OF

FOR
EVIDENCE

Any person who is found guilty of planting nay dangerous drug and/ or controlled precursor and essential
chemicals, regardless of quantity and purity, shall suffer the penalty of death. (Sec. 29). Previosly, only
law
enforcement
agent
maybe
held
liable
(R.A.
7659).

ACCESORY

PENALTIES

Any person convicted under this Law (R.A.9165 ) shall be disqualified to exercise his/her civil rights
such as, but not limited to, the right of parental authority or guardianship, either as to the person or
property of any ward, the rights to dispose of such property by any act or any conveyance inter vivos, and
political rights such as but not limited to, the right to vote and be voted for. Such rights shall also be
suspended during the pendency of an appeal from such conviction (Sec.35)

AGGRAVATING

CIRCUMSTANCES

DRUG

RELATED

CASES

1.) If the importation or bringing into the Philippines of any dangerous drugs and/or controlled precursor
and essential chemicals was done through the use of diplomatic passport, diplomatic facilities or any
other means involving his/her official status intended to facilitate the unlawful entry of the same
2.) The sale trading, administration, dispensation, delivery, distribution or transportation of any dangerous
drug and/or controlled precursor and essential chemical transpired within one hundred (100) meters from
the
school
3.) The drug pusher use minors or mentally incapacitated individuals as runners, couriers and messenger,
or in any other capacity directly connected to the dangerous drug and/or controlled precursor and essential
chemical
trade.
4.) The victim of the offense is a minor or mentally incapacitated individual, or should a dangerous drug
and/or controlled precursor and essential chemicals involved `in any offense be the proximate cause of
death
of
a
victim.
5.) In case the clandestine laboratory is undertaken or established under the following circumstances:
a.) Any phase of the manufacturing process was conducted in the presence or with the help of minor/s
b.) Any phase of 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 practitioner, chemical engineer, public official or foreigner.
6.) In case the person uses a minor or a mentally incapacitated individual to deliver equipment,
instrument,
apparatus
and
other
paraphernalia
use
for
dangerous
drugs.
7.) Any person found possessing any dangerous drug during a party, or a social gathering or meeting, or in
the
proximate
company
of
at
least
two
(2)
person.
8.) Possession or having under his/her control any equipment, instrument, apparatus and other
paraphernalia fit of intended for smoking, consuming, administering, injecting, ingesting or introducing
any dangerous drug into the body, during parties, social gatherings or meetings, or in the proximate
company
of
at
least
two
(2)
person

WHAT
AVAILABLE

ARE
TO

THE
VIOLATOR

PRIVILEGE
OF
THIS

NOT
ACT?

1.) 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.

2.) Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed
by the Court, cannot avail of the privilege granted by the Probation Law of P.D. No. 968, as amended,
except
minors
who
are
first-time
offenders.
Note:Pendency
Rights
to

IMMUNITY
AND

of
appeal
suspend
Self-incrimination
do

the
not

FROM

right
refer

of
to

the
giving

accused
blood.

PROSECUTION
PUNISHMENT

Immunity from Prosecution and punishment Notwithstanding the provision of Section 17, Rule 119 of
the Revised Rules of Criminal Procedure and the provisions of Republic Act No. 6981 or the Witness
Protection, Security and Benefits Act of 1991, any person who has violated Sections 7,11, 12, 14, 15 and
19, Article II of this Act, who voluntarily gives information about any violation of Section 4, 5, 6, 8, 13
and 16, Article II of this Act as well as any violation of the offenses mentioned if committed by drug
syndicate, or of any information leading to the whereabouts, identities and arrest of all or any of the
members thereof; and who willingly testifies against such persons as described above, shall be exempted
from the prosecution or punishment for the offense with reference to which his/her information of
testimony in bar of such prosecution; Provided, that the following condition concur:
1.) The information and testimony are necessary for the conviction of the person described above;
2.)
Such
information
are
not
yet
in
the
possession
of
the
State;
3.) Such information and testimony can be corroborated on its material points;
4.) The informant or witness has not been previously convicted of a crime involving moral turpitude,
except when there is no other direct evidence available for the State other than the information and
testimony
of
said
informant
or
witness;
and
5.) The informant or witness shall strictly and faithfully comply without delay, any condition or
undertaking, reduced into writing, lawfully imposed by the State as further consideration for the grant of
immunity
from
prosecution
and
punishment.
Provided, further, That this immunity may be enjoyed by such informant or witness who does not appear
to be most guilty for the offense with reference to which his/her information or testimony were given.
Provide, finally, that there is no direct evidence available for the State except for the information and
testimony
of
the
said
informant
or
witness.

TERMINATION
GRANT

OF
OF

THE
IMMUNITY

The immunity above-granted shall not attach should it turn out subsequently that the information and/or
testimony is false, malicious, or made only for the purpose of harassing, molesting or in any way
prejudicing the persons described in Section 33 against whom such information or testimony is directed.
In such case, the informant or witness shall be subject to prosecution and the enjoyment of all rights and

benefits previously accorded him under the Law or any other law, decree or order shall be deemed
terminated.
In case the informant or witness under the Law fails or refuse to testify without just cause, and when
lawfully obliges to do so, or should he/she violate any condition accompanying such immunity as
provided above, his/her immunity shall be removed and he/she shall be likewise be subjected to contempt
and/or criminal prosecution, as the case may be and the enjoyment of all rights and benefits previously
accorded him under the Law or in any other law, decree or order shall be deemed terminated. (Sec 34.)
In case the informant or witness referred to under the Law falls under the applicability of Section 34, such
individual
cannot
avail
of
the
provision
under
Article
VIII
of
the
Law.

PERSON/S
TO

THE

WHO
MANDATORY

ARE
DRUG

SUBJECT
TESTING

a.) Applicants for drivers license no drivers license shall be issued or renewed to nay person unless
he/she presents a certification that he/she has undergone a mandatory drug test and indicating thereon that
he/she
is
free
from
the
use
of
dangerous
drugs.
b.) Applicants for firearms license and permit to carry firearms outside of residence. All applicants for
firearms license and permit to carry firearms outside of residence shall undergo a mandatory drug test to
ensure that they are free from the use of dangerous drugs; Provided, That all persons who by the nature of
their
profession
carry
firearms
shall
undergo
drug
testing;
c.) Officers and employees of public and private offices. Officers and employees of public and private
offices, whether domestic or overseas, shall be subjected to undergo a random drug test as contained in
the companys work unless and regulation, which shall be borne by the employer, for purposes of
reducing the risk in the workplace. Any officer or employee found positive for the sue of dangerous drug
shall be dealt with administratively which shall be a ground for suspension or termination, subject to the
provision Article 282 of the Labor Code and pertinent provisions of the Civil Service Law.
d.) Officers and members of the military, police and other law enforcement agencies. Officers and
members of the military, police and other law enforcement agencies shall undergo an annual mandatory
drug
test.
e.) All persons charged before the prosecutors office with a criminal offense having an imposable penalty
of imprisonment of not less than six (6) years and one (1) day shall have undergo a mandatory drug test.
f.) All candidates for public office whether appointed or elected both in the national or local government
shall
undergo
a
mandatory
drug
test.

CONFIDENTIALITY
OF
THE
COMPULSARY

RECORDS
SUBMISSION

UNDER
PROGRAM

The records of a drug dependent who was rehabilitated and discharged from the Center under the
compulsory submission program, or who was charged for violation of Section 15 of this Act, shall be
covered by Section 60 of this Act (R.A. 9165). However, the record of a drug dependant who was not

rehabilitated, or who escaped but did not surrender himself/herself within the prescribed period, shall be
forwarded to the court and their use shall be determined by the court, taking into consideration public
interest
and
the
welfare
of
the
drug
dependant
(Sec.
64)
DISCHARGED AFTER COMPLIANCE WITH CONDITIONS OF SUSPENDED SENTENCE OF A
FIRST-TIME
MINOR
OFFENDER
If the accused first time minor offender under suspended sentence complies with the applicable rules and
regulation of the Board, including confinement in a Center, the court, upon a favorable recommendation
of the Board for a final discharge of the accused, shall discharge the accused and dismiss all proceedings.
Upon the dismissal of the proceedings against the accused, the court shall enter an order to expunge all
official records, other than the confidential record to be retained by the DOJ relating to the case. Such an
order, which shall be kept confidential, shall restore the accused to his/her status prior to the case. He/she
shall not be held thereafter to be guilty of perjury or of concealment or misrepresentation by reason of
his/her failure to acknowledge the case or recite any fact related therto in response to any inquiry madeof
him
for
any
purpose
(Sec.
67)

THE
PHILIPPINE
The
A.

DANGEROUS
DRUG
Dangerous

DRUGS
BOARD
ENFORCEMENT
Drug

AND
AGENCY
Board
Function

The Dangerous Drug Board shall be the policy-making and strategy formulating body in the planning and
formulation of policies and programs on drug prevention and control. (Sec. 77)
B.

Composition

Under R.A. 6424 as amended, the Dangerous Drug board was composed of seven ex officio members as
follows: (a) The Minister of Health or his representative; (b) the Minister of Justice or his representative;
(c) The Minister of National Defense or his representative; (d) The Minister of Education and Culture or
his representative; (e) The Minister of Finance or his representative; (f) The Minister of Social Service
and Development or his representative; and (g) The Minister of Local Government or his representative
(Sec.
35
Art.
8,
R.A.
6424)
The Minister of Health shall be the Chairman of the Board and the Director of the National Bureau of
Investigation
shall
be
the
permanent
consultant
of
the
Board.
Under Section 78 of R.A. 9165, the membership of the Dangerous Drugs Board was expanded to
seventeen (17) members, three (3) of which are permanent members, twelve (12) shall be in ex officio
capacity,
and
the
remaining
two
(2)
shall
be
regular
members.
The three (3) permanent members, who shall possess At least seven-year training andexperience in the
field of dangerous drugs andin any of the following fields: in law, medicine, criminology, psychology or
social work, shall be appointed by the President of the Philippines. The President shall designate a

Chairman, who shall have the rank of a secretary from among the three (3) permanent members who shall
serve for six (6) years. Of the two (2) other members, who shall have the rank of undersecretary, one (1)
shall serve for four (4) and the other for two (2) years. Thereafter, the person appointed to succeed such
members shall hold office for a term of six (6) years and until their successors shall have been duly
appointed
and
qualified.
The other twelve (12) members who shall be ex officio members of the Board are the following: (1)
Secretary of the Department of Justice or his/her representative; (2) Secretary of the Department of Health
or his/her representative; (3) Secretary of the Department of National Defense or his/her representative;
(4) Secretary of the Department of Finance or his/her representative; (5) Secretary of the Department of
Labor and Employment or his/her representative; (6) Secretary of the Department of Interior and Local
Government or his/her representative; (7) Secretary of the Department of Social Welfare and
Development or his/her representative; (8) Secretary of the Department of Foreign Affairs or his/her
representative; (9) Secretary of the Department of Education or his/her representative; (10) Chairman of
the Commission of Higher Education or his/her representative; (11) Chairman of the National Youth
Commission; and (12) Director General of the Philippine Drug Enforcement Agency.
Cabinet secretaries who are members of the Board may designate their duly authorized and permanent
representatives
whose
rank
shall
in
no
case
be
lower
than
undersecretary.
The two (2) regular members shall be as follows: (a) The President of the Integrated Bar of the
Philippines; and (b) The chairman or president of a non- chairman or president of a non- chairman or
president of a non-government organization involved in dangerous drug campaign to be appointed by the
President
of
the
Philippines.

The

Philippine

Drug

Enforcement

Agency

(PDEA)

A.
Functions
Carry out the provision of the Dangerous Drug act of 2002. The Agency shall served as the implementing
arm of the Dangerous Drug Board, and shall be responsible for the efficient and effective law
enforcement of all provisions of any dangerous drug and/or controlled precursor and essential chemicals
as provided for in the Law. (Sec. 82). The existing Secretariat of the National Drug Law Enforcement and
Prevention Coordinating Center as created by Executive Order No. 61 is hereby modified and absorbed
by
the
PDEA
(Sec.
83,
R.A.
9165)
B.)

Powers

and

Duties

a.) Implement or cause the efficient and effective implementation of the national drug control strategy
formulated by the Board thereby carrying out a national drug campaign program which shall include drug
law enforcement, control and prevention campaign with the assistance of concerned government
agencies;
b.) Undertake the enforcement of the provision of article II of this Act relative to the unlawful acts and
penalties involving any dangerous drug and/or controlled precursor and essential chemical and investigate
all violators and other matters involved in the commission of any crime relative to the use, abuse or
trafficking of any dangerous drug and/or controlled precursor and essential chemicals as provided for in
this
Act
and
the
provisions
of
Presidential
Decree
No.
1619;

c.) Administer oath, issue subpoena and subpoena duces tecum relative to the conduct of investigation
involving
violation
of
this
Act;
d.) Arrest and apprehend as well as search all violators and seize or confiscate, the effects or proceeds of
the crime as provided by law and take custody thereof, for this purpose the prosecutors and enforcement
agents are authorized to possess firearms, in accordance with the existing laws;
e.) Take charge and have custody of all dangerous drugs and/or controlled precursors and essential
chemicals seized, confiscated or surrendered to any national, provincial or local law enforcement agency;
if
no
longer
needed
for
purposes
of
evidence
in
court.
f.) Establish forensic laboratories in each PNP office in every province and city in order to facilitate
action on seized or confiscated drugs; thereby hastening its destruction without delay;
g.) Recommend to the DOJ the forfeiture of properties and other assets of persons and/or corporations
found to be violating the provisions of this Act and in accordance with the pertinent provisions of the
Anti-Money
Laundering
Act
of
2002.
h.) Prepare for prosecution or cause the filing of appropriate criminal and civil cases for violation of laws
on dangerous drugs, controlled precursors and essential chemicals, and other similar controlled substance,
and assist, support and coordinate with other government agencies for the proper and effective
prosecution
of
the
same;
i.) Monitor and if warranted by circumstances, in coordination with the Philippine Postal Office and the
Bureau of Customs, inspect all air cargo packages, parcels and mails in the central post office, which
appear from the packages and address itself to be a possible importation of dangerous drugs and/or
controlled precursors and essential chemicals, through on-line or cyber shops via the internet or
cyberspace;
j.) Conduct eradication programs to destroy wild or illegal growth of plants from which dangerous drugs
may
be
extracted;
k.) Initiate and undertake the formation of a nationwide organization which shall coordinate and supervise
all activities against drug abuse in every province, city, municipality and barangay with active and direct
participation of all such local government units and non-governmental organizations, including the
citizenry, subject to the provisions of previously formulated programs of action against dangerous drugs;
l.) Establish and maintain a national drug intelligence system in cooperation with law enforcement
agencies, other government agencies/offices and local government units that will assist in its
apprehension
of
big
time
drug
lords;
m.) Established and maintain close coordination, cooperation and linkages with international drug control
and administration agencies and organization and implement the applicable provisions of international
conventions and agreement related to dangerous drugs to which the Philippines is a signatory;
n.) Create and maintain an efficient special enforcement unit to conduct an investigation, file charges and
transmit evidence to the proper court, wherein members of the said unit shall possess suitable and
adequate firearms for their protection in connection with the performance of their duties; Provided, That
no
previous
special
permit
for
such
possession
shall
be
required;
o.) Require all government and private hospitals, clinics, doctors, dentists and other practitioners to
submit a report to it, in coordination with the Board, about all dangerous drugs and/or controlled
precursors and essential chemicals which they have attended to for data and information purposes;
p.) Coordinate with the Board for the facilitation of the issuance of necessary guidelines, rules and
regulations
for
the
proper
implementation
of
this
Act;
q.) Initiate and undertake a national campaign for drug prevention and drug control programs, where it

may enlist the assistance of any department, bureau, office, agency, or instrumentality of the government,
including government-owned and/or controlled corporations, in the anti-illegal drugs drive, which may
include the use of their respective personnel, facilities, and resources for a more resolute detection and
investigation of drug-related crimes and prosecution of the drug traffickers; and
r.) Submit an annual and periodic report to the Board as may be required form time to time, and perform
such other functions as may be authorized or required under existing laws and as directed by the President
himself/herself
or
as
recommended
by
the
congressional
committees
concerned.
Note:
There are however certain power and duties of the PDEA enumerated under Section 84 of R.A. 9165
which seems to overlap with the functions of prosecutors such as (1) the preparation for prosecution or
the causing of the filing of appropriate criminal cases for violation of the Law; and (2) filing of charges
and transmittal of evidence to the proper court and which have to be clarified in the Implementing Rules
and
Regulation
that
may
be
issued
by
the
DDB
and
the
PDEA later.

JURISDICTION

OVER

DRUG

RELATED

CASES

The Supreme Court shall designate special court from among the existing Regional Trial Court in each
judicial region to exclusively try and hear cases involving violations of this Act. The number of courts
designated in each judicial region shall be based in their respective jurisdiction.
The DOJ shall designate special prosecutor to exclusively handle cases involving violations of this Act.

PRELIMINARY
OF

DANGEROUS

DRUG

INVESTIGATION
CASES

The preliminary investigation of cases filed under this Act shall be terminated within the period of thirty
(30)
days
from
the
date
of
their
filing
When the preliminary investigation is conducted by a public prosecutor and probable cause is established,
the corresponding information shall be filed in court within twenty-four (24) hours from the termination
of the investigation. If the preliminary investigation is conducted by a judge and a probable cause is found
to exist, the corresponding information shall be filed by the proper prosecutor within forty-eight (48)
hours
from the
date
of
receipt
of
the
records
of
the
case.
(Sec.
90)
The Department of Justice shall designate special prosecutors to exclusively handle cases involving
violations
of
the
Dangerous
Drug
Act
of
2002
(Sec.
90)
Notwithstanding the provision of any law to the contrary, a positive finding for the use of dangerous
drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the
application of the penalty provided for in the Revised Penal Code shall be applicable (Sec. 25)

Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, including the Properties
or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and Essential
Chemicals
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 drugs
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 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 pursuant to the provisions of
Section
21
of
this
Act.
After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall
immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and
all the assets and properties of the accused either owned or held by him or in the name of some other
persons if the same shall be found to be manifestly out of proportion to his/her lawful income; Provided,
however, That if the forfeited property is a vehicle, the same shall be auctioned off not later than five (5)
days
upon
order
of
confiscation
or
forfeiture.
During the pendency of the case in the Regional Trial Court, no property, or income derived thereform,
which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be
in custodio legis and no bond shall be admitted for the release of the same.
The proceeds of any sale or disposition of any property confiscated under this section, forfeiture, custody
and maintenance of the property pending disposition, as well as the expense for publication and court
costs. The proceeds in excess of the above expenses shall accrue to the Board to be used in its campaign
against
illegal
drugs.

CUSTODY
AND/OR

AND
DISPOSITION
OF
SURRENDERED
DANGEROUS

CONFISCATED,
DRUGS,

SEIZED
ETC.

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 that was confiscated, seized and/or surrendered, for proper disposition in the following
manner:
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;
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
examination;
3. A certification of the forensic laboratory examination results, which shall be under oath by the forensic
laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject items/s:
Provided, that when the volume 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 by the forensic laboratory: Provided, however, that a final certification on the same
within
the
next
twenty-four
(24)
hours;
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 precursor 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 which such
items were confiscated and/or seized, or his/her representative or counsel, a representative from the media
and the DOJ, civil society group 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; Provided, further, That a representative sample, duly weighed and
recorded,
is
retained;
5. The Board shall then issue a sworn statement as to the fact of destruction or burning of the subject
item/s together with 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 or destruction of the evidence in question,
the Secretary of Justice shall appoint a member of the public attorneys office to represent the former;
7. After the promulgation of 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-foru (24) hours from receipt of the same; and
8. Transitory Provision: a.) Within twenty-four hours from the effectivity of this Act (R.A. 9165),
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 representative 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 of seized or surrendered dangerous drugs provided under this Section
shall
be
implemented
by
the
DOH
(Sec.
21,
Art.
2,
R.A.
9165)

SUSPENSION
FIRST-TIME

OF

SENTENCE
MINOR

OF
OFFENDER

An accused who is over fifteen (15) years of age at the time of the commission of the offense mentioned
in Section 11 of R.A. 9165 but not more that eighteen (18) years of age at the time when the judgment
should have been promulgated after having been found guilty of said offense, may be given the benefits
of
a
suspended
sentence,
subject
to
the
following
conditions:
a.) He/She has not been previously convicted of violating any provision of this Act, or of the Dangerous
Drugs Act of 1972, as amended; or of the Revised Penal Code; or any special penal laws;
b.) He/She has not been previously committed to a Center or to the care of a DOH-accredited physician;
and
c.)
The
Board
favorably
recommends
that
his/her
sentence
be
suspended.

PRIVILEGE OF SUSPENDED SENTENCE CAN BE AVAIL ONLY ONCE BY A FIRST-TIME MINOR

OFFENDER
The privilege of suspended sentence shall be availed of only once by accused drug dependent who is a
first-time offender over fifteen (15) years of age at the time of the commission of the violation of Section
15 of this Act but not more than eighteen (18) years of age at the time when judgment should have been
promulgated.
(Sec.
68)

PROMULAGATION
FOR

OF
FIRST-TIME

SENTENCE
OFFENDER

If the accused first-time minor offender violates any of the conditions of his/her suspended sentence, the
applicable rules and regulations of the Board exercising supervision and rehabilitative surveillance over
him, including the rules and regulations of the Center should confinement be required, the court shall
pronounce judgment of conviction and he/she shall serve sentence as any other convicted person. (Sec.
69)

PROBATION OR COMMUNITY SERVICE FOR A FIRST-TIME MINOR OFFENDER IN LIEU OF

IMPRISONMENT
Upon promulgation of the sentence, the court may, in its discretion, place the accused under probation,
even if the sentence provided under this Act is higher than that provided under existing law on probation,

or impose community service in lieu of imprisonment. In case of probation, the supervision and
rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination with the
Board of Pardons and Parole and the Probation Administration. Upon compliance with the conditions of
the probation, the Board shall submit a written report to the court recommending termination of probation
and a final discharge of the probationer, whereupon the court shall issue such an order.
The community service shall be complied with under conditions, time and place as may be determined by
the court in its discretion and upon the recommendation of the Board and shall apply only to violators of
Section 15 of this Act. The completion of the community service shall be under the supervision and
rehabilitative surveillance of the Board during the period required by the court. Thereafter, the Board shall
render a report on the manner of compliance of said community service. The court in its discretion may
require
extension
of
the
community
service
or
order
a
final
discharge.
If the sentence promulgated by the court require imprisonment, the period spent in the Center by the
accused
shall
be
deducted
from
the
sentence
to
be
served.
(
Sec.
70)

WHAT ARE THE LIABILITY AND RESPONSIBILITY OF A MEMBER OF LAW ENFORCEMENT

AGENCIES AND OTHER GOVERNMENT OFFICIALS IN TESTIFYING AS PROSECUTION
WITNESSES
IN
DANGEROUS
DRUG
CASES?
Any member of law enforcement agencies or any other government official and employee who, after due
notice, fails or refuse intentionally or negligently, to appear as a witness for the prosecution in any
proceedings, involving violation of this Act, without any valid reason shall be punished with
imprisonment of not less than twelve (12) years and one (1) day to twenty (20) years and a fine of not less
than Five hundred thousand pesos (P500,000.00), in addition to the administrative liability he/she may be
meted
out
by
his/her
immediate
superior
and/or
appropriate
body.
The immediate superior of the member of the law enforcement agency or any other government employee
mentioned in the preceding paragraph shall be penalized with imprisonment of not less than two (2)
months and one (1) day but not more than six (6) years and a fine of not less than ten thousand
(P10,000.00) but not more than Fifty thousand (P50,000.00) and in addition, perpetual absolute
disqualification from public office if despite due notice to them and to the witness concerned the former
does
not
exert
reasonable
effort
to
present
the
latter
to
the
court
The member of the law enforcement agency or any other government employee mentioned in the
proceeding paragraphs shall not be transferred or re-assigned to any other government office located in
another territorial jurisdiction during the pendency of the case in court. However, the concerned member
of the law enforcement agency or government employee may be transferred or re-assigned for compelling
reason: Provided, that his/her immediate superior shall notify the court where the case is pending of the
order to transfer or re-assign, within twenty-four (24) hours from its approval: Provided further, that
his/her immediate superior shall be penalized with imprisonment of not less than two (2) months and one
(1)day but not more than six (6) years and a fine of not less than two (2) months and one (1) day but not
more than six (6) years and a fine of not less than Ten thousand (P10,000.00) but not more than Fifty
thousand pesos (P50,000.00) and in addition, perpetual absolute disqualification from public office,

should

he/she

fails

DELAY
PROSECUTION

to

notify

the

court

ANF

of

such

order

to

BUNGLING
OF

transfer

IN
DRUG

or

re-assign.

THE
CASES

Any government officer employee tasked with the prosecution of drug-related cases under this Act, who
through patent laxity, inexcusable neglect, unreasonable delay or deliberately causes the unsuccessful
prosecution and/or dismissal of the said drug cases, shall suffer the penalty of imprisonment ranging from
twelve (12) years and one (1) day to twenty (20) years without prejudice to his/her prosecution under the
pertinent
provision
of
the
Revised
Penal
Code.

RECORDS
DEPARTMENT

TO

BE

KEPT

BY

OF

THE
JUSTICE

The DOJ shall keep a confidential record of the proceedings on suspension of sentence and shall not be
used for any purpose other than to determine whether or not a person accused under this Act is a first-time
offender.
(Sec.
71)

LIABILITY
THE

OF
A
CONFIDENTIALITY

PERSON

WHO
OF

VIUOLATES
RECORDS

The Penalty of imprisonment ranging from six (6) months and one (1) day to six (6) years and a fine
ranging from One thousand pesos (P1,000.00) to Six thousand pesos (P6,000.00), shall be imposed upon
any person who, having official custody of or access to the confidential records of any drug dependent
under voluntary submission programs, or any one who, having gained possession of said records, whether
lawfully or not, reveals their content to any person other than those charged with the prosecution of the
offense under this Act and its implementation. The maximum penalty shall be imposed, in addition to the
absolute perpetual disqualification from any public office, when the offender is a government official or
employee. Should the records be used for unlawful purposes, such as blackmail of the drug defendant of
the members of his/her family, the penalty imposed for the crime of violation of confidentiality shall be in
addition
to
whatever
crime
he/she
convicted
of.
(Sec.
72)

LIABILITY
GUARDIAN
WITH
THE

OF
WHO
BOARD

PARENTS,
REFUSE
OR
ANY

SPOUSE
OR
TO
COOPERATE
CONCERNED
AGENCY

Any parent, spouse or guardian who, without valid reason parent, spouse or guardian who, without valid
reason, refuses to cooperate with the Board or any concerned agency in the treatment and rehabilitation of
a drug defendant who is a minor, or in any manner, prevents or delay the after-care, follow-up or other
programs for the welfare of the accused drug defendant, whether under voluntary submission program or

compulsory

submission

program,

may

be

cited

in

contempt

by

the

court.

COST-SHARING IN THE TREATMENT AND REHABILITATION OF A DRUG DEFENDENT

The parents, spouse, guardian or any relative within the fourth degree of consanguinity of any person who
is confined under the voluntary submission program or compulsory submission program shall be charged
a certain percentage of the cost of his/her treatment and rehabilitation, the guidelines of which shall be
formulated by the DSWD taking into consideration the economic status of the family of the person
confined. The guidelines therein formulated shall be implemented by a social worker of the local
government
unit.
(Sec.
74)

LIMITED

APPLICABILITY

OF

THE

REVISED

PENAL

CODE

Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code
(Act. 3814) as amended, shall not apply to the provision of this Act, except in the case of minor offenders.
Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided
therein
shall
be
reclusion
perpetua
to
death.
(Sec.
98)

EXCEPTION
OF

TO
A

NECESSITY
WARRANT

SEARCH

There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer
to make a search upon the person arrested. An officer making an arrest may take from the person arrested
any money or property found upon his person which was used in the commission of the crime or was in
fruit of the crime or which might furnish the prisoner with the means of committing violence or of
escaping, which may be used as evidence in the trial of the case. (People v. Musa; GR 96177, 1/27/93)

LIKE
TO
TO

ALIBI,
FRAME
FABRICATE,

UP
BUT

IS

EASY
DIFFICULT
PROVE

Frame-up, like alibi, is a defense that has been viewed by courts with disfavor for it can just as easily be
connected and is a common and standard line of defense in most prosecution arising from violations of
the Dangerous Drugs Act. In order for that defense to prosper, the evidence adduced must be clear and
convincing.
(People
v.
Girang;
GR
27949,
2/1/95)

BUY-BUST

OPERATION

Is a form of entrapment employed by peace officers as an effective way of apprehending a criminal in the

act of the commission of the offense. Entrapment has received judicial sanction as long as it is carried out
with due regard to constitutional and legal safeguards. (People v. Basilgo; GR 107327, 8/5/94)

POSEUR-BUYER,
NEED

GENERALLY
TESTIFY

NOT

The testimony of the poseur-buyer or of the confidential informant is no longer material considering that
accused-appellants drug pushing was positively attested to. Moreover, informants are generally not
presumed in court because of the need to hide their identity and preserve their invaluable service to the
police.
(People
v.
Girang;
GR
97949,
2/1/95)

EFFECT
SECTION
CONSTITUTION

OF
19,

ART.
ON

LIMITATION
VII
GRANT

OF
OF

UNDER
THE
PARDON

The "conviction by final judgment" limitation under Section 19, Article VII of the present Constitution
prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his appeal
from his conviction by the trial court. Any application therefor, if one is made, should not be acted upon
or the process toward its grant should not be begun unless the appeal is withdrawn. Accordingly, the
agencies or instrumentalities of the Government concerned must require proof from the accused that he
has not appealed from his conviction or that he has withdrawn his appeal Such proof may be in the form
of a certification issued by the trial court or the appellate court, as the case may be The acceptance of the
pardon shall not operate as an abandonment or waiver of the appeal, and the release of an accused by
virtue of a pardon, commutation of sentence, or parole before the withdrawal of an appeal shall render
those responsible therefor administratively liable Accordingly, those in custody of the accused must not
solely rely on the pardon as a basis for the release of the accused from confinement. (People v. Maquilan)

RULE
BE

AS

TO
CRIMINALLY

WHO

SHOULD
CHARGED

The settled rule is that the determination of who should be criminally charged in court is essentially an
executive function, not a judicial one. As the officer authorized to direct and control the prosecution of all
criminal actions, the prosecutor is tasked to ascertain whether there is sufficient ground to engender a
well-founded belief that an offense has been committed and that the accused is probably guilty thereof.
(People
v.
Esparas;
GR
120034,
July
10,
1998)

WHEN
OF

THERE

IS
WARRANTLESS

WAIVER
ARREST

The appellants are now precluded from assailing the warrantless search and seizure when they voluntarily
submitted to it as shown by their actuation during the search and seizure. The appellants never protested
when SPO3 Jesus Faller, after identifying himself as a police officer, opened the tin can loaded in the
appellants' vehicle and found eight (8) bundles. And when Faller opened one of the bundles, it smelled of
marijuana. The NBI later confirmed the eight (8) bundles to be positive for marijuana. Again, the
appellants did not raise any protest when they, together with their cargo of drugs and their vehicle, were
brought to the police station for investigation and subsequent prosecution. We have ruled in a long line of
cases
that:
"When one voluntarily submits to a search or consents to have it made on his person or premises, he is
precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, page 631).
The right to be secure from unreasonable search may, like every right, be waived and such waiver may be
made
either
expressly
or
impliedly."
The appellants effectively waived their constitutional right against the search and seizure in question by
their voluntary submission to the jurisdiction of the trial court, when they entered a plea of not guilty
upon arraignment and by participating in the trial. (People v. Correa; GR 119246, Jan. 30, 98)

WHEN
IN
CASE

USE

OF

DRUG

CASES
IS

MOTOR
OR
NOT

VEHICLE
OTHER
AGGRAVATING

ANY

Simply stated, the motor vehicle which was used to transport prohibited drugs was not purposely sought
to facilitate the commission of the crime since such act of transporting constitutes the crime itself,
punishable under Section 4, Article II of Republic Act No. 6425, as amended. That a motor vehicle was
used in committing the crime is merely incidental to the act of transporting prohibited drugs. The use of a
motor vehicle is inherent in the crime of transporting as it must of necessity accompany the commission
thereof; hence, such use is not an aggravating circumstance. (People v. Correa)

CASES

WHEN

WARRANTLESS

SEARCH

IS

ALLOWED

1. Warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of
Court
and
by
prevailing
jurisprudence;
2.

Seizure

of

evidence

in

"plain

view,"

the

elements

of

which

are:

(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in
the
pursuit
of
their
official
duties;

(b) the evidence was inadvertently discovered by the police who had the right to be
where
they
are;
(c)
the
evidence
must
be
immediately
apparent,
and
(d)
"plain
view"
justified
mere
seizure
of
evidence
without
further
search;
3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility
reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly
reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;
4.
5.
6.
7.
(People

Consented
Customs
Stop
Exigent
v.
Menguin;

CASES
A

WHEN
WARRANT

and
and
GR

warrantless
search;
Frisk;
Emergency
120915,
Apr.

SEARCH
WAS

search;
and
Circumstances.
13,
98)

WITHOUT
VALID

In People v. Tangliben, acting on information supplied by informers, police officers conducted a

surveillance at the Victory Liner Terminal compound in San Fernando, Pampanga against persons who
may commit misdemeanors and also on those who may be engaging in the traffic of dangerous drugs. At
9:30 in the evening, the policemen noticed a person carrying a red travelling bag who was acting
suspiciously. They confronted him and requested him to open his bag but he refused. He acceded later on
when the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a plastic
wrapper. The police officers only knew of the activities of Tangliben on the night of his arrest.
In instant case, the apprehending officers already had prior knowledge from their informant regarding
Aruta's alleged activities. In Tangliben policemen were confronted with an on-the-spot tip. Moreover, the
policemen knew that the Victory Liner compound is being used by drug traffickers as their "business
address". More significantly, Tangliben was acting suspiciously. His actuations and surrounding
circumstances led the policemen to reasonably suspect that Tangliben is committing a crime. In instant
case,
there
is
no
single
indication
that
Aruta
was
acting
suspiciously.
In People v. Malmstedt, the Narcom agents received reports that vehicles coming from Sagada were
transporting marijuana. They likewise received information that a Caucasian coming from Sagada had
prohibited drugs on his person. There was no reasonable time to obtain a search warrant, especially since
the identity of the suspect could not be readily ascertained. His actuations also aroused the suspicion of
the officers conducting the operation. The Court held that in light of such circumstances, to deprive the
agents of the ability and facility to act promptly, including a search without a warrant, would be to
sanction impotence and ineffectiveness in law enforcement, to the detriment of society.
Note, however, the glaring differences of Malmstedt to the instant case. In present case, the police officers
had reasonable time within which to secure a search warrant. Second, Aruta's identity was priorly

ascertained. Third, Aruta was not acting suspiciously. Fourth, Malmstedt was searched aboard a moving
vehicle, a legally accepted exception to the warrant requirement. Aruta, on the other hand, was searched
while
about
to
cross
a
street.
In People v. Bagista, the NARCOM officers had probable cause to stop and search all vehicles coming
from the north to Acop, Tublay, Benguet in view of the confidential information they received from their
regular informant that a woman having the same appearance as that of accused-appellant would be
bringing marijuana from up north. They likewise had probable cause to search accused-appellant's
belongings since she fitted the description given by the NARCOM informant. Since there was a valid
warrantless search by the NARCOM agents, any evidence obtained in the course of said search is
admissible against accused-appellant. Again, this case differs from Aruta as this involves a search of a
moving vehicle plus the fact that the police officers erected a checkpoint. Both are exceptions to the
requirements
of
a
search
warrant.
In Manalili v. Court of Appeals and People, the policemen conducted a surveillance in an area of the
Kalookan Cemetery based on information that drug addicts were roaming therein. Upon reaching the
place, they chanced upon a man in front of the cemetery who appeared to be "high" on drugs. He was
observed to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be trying
to avoid the policemen. When approached and asked what he was holding in his hands, he tried to resist.
When he showed his wallet, it contained marijuana. The Court held that the policemen had sufficient
reason to accost accused-appellant to determine if he was actually "high" on drugs due to his suspicious
actuations, coupled with the fact that based on information, this area was a haven for drug addicts.
This case is similar to People v. Aminnudin where the police received information two days before the
arrival of Aminnudin that the latter would be arriving from Iloilo on board the M/V Wilcon 9. His name
was known, the vehicle was identified and the date of arrival was certain. From the information they had
received, the police could have persuaded a judge that there was probable cause, indeed, to justify the
issuance of a warrant. Instead of securing a warrant first, they proceeded to apprehend Aminnudin. When
the case was brought before this Court, the arrest was held to be illegal; hence any item seized from
Aminnudin
could
not
be
used
against
him.
Another recent case is People v. Encinada where the police likewise received confidential information the
day before at 4:00 in the afternoon from their informant that Encinada would be bringing in marijuana
from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the following day. This intelligence
information regarding the culprit's identity, the particular crime he allegedly committed and his exact
whereabouts could have been a basis of probable cause for the lawmen to secure a warrant. This Court
held that in accordance with Administrative Circular No. 13 and Circular No. 19, series of 1987, the
lawmen could have applied for a warrant even after court hours. The failure or neglect to secure one
cannot
serve
as
an
excuse
for
violating
Encinada's
constitutional
right.
People v. Solayao, applied the stop and frisk principle which has been adopted in Posadas v. Court of
Appeals. In said case, Solayao attempted to flee when he and his companions were accosted by
government agents. In the instant case, there was no observable manifestation that could have aroused the
suspicion of the NARCOM agents as to cause them to "stop and frisk" accused-appellant. To reiterate,

accused-appellant was merely crossing the street when apprehended. Unlike in the abovementioned cases,
accused-appellant never attempted to flee from the NARCOM agents when the latter identified
themselves as such. Clearly, this is another indication of the paucity of probable cause that would
sufficiently provoke a suspicion that accused-appellant was committing a crime.
This Court cannot agree with the Solicitor General's contention for the Malasugui case is inapplicable to
the instant case. In said case, there was probable cause for the warrantless arrest thereby making the
warrantless search effected immediately thereafter equally lawful. On the contrary, the most essential
element of probable cause, as expounded above in detail, is wanting in the instant case making the
warrantless arrest unjustified and illegal. Accordingly, the search which accompanied the warrantless
arrest was likewise unjustified and illegal. Thus, all the articles seized from the accused-appellant could
not
be
used
as
evidence
against
her.
(People
v.
Menguin)

WHEN

SEARCH

IS

NOT

VALID

Accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to commit one
nor had she just committed a crime. Accused-appellant was merely crossing the street and was not acting
in any manner that would engender a reasonable ground for the NARCOM agents to suspect and
conclude that she was committing a crime. It was only when the informant pointed to accused-appellant
and identified her to the agents as the carrier of the marijuana that she was singled out as the suspect. The
NARCOM agents would not have apprehended accused-appellant were it not for the furtive finger of the
informant because, as clearly illustrated by the evidence on record, there was no reason whatsoever for
them to suspect that accused-appellant was committing a crime, except for the pointing finger of the
informant. This the Court could neither sanction nor tolerate as it is a clear violation of the constitutional
guarantee against unreasonable search and seizure. Neither was there any semblance of any compliance
with
the
rigid
requirements
of
probable
cause
and
warrantless
arrests.
Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of accusedappellant's bag, there being no probable cause and the accused-appellant not having been lawfully
arrested. Stated otherwise, the arrest being incipiently illegal, it logically follows that the subsequent
search was similarly illegal, it being not incidental to a lawful arrest. The constitutional guarantee against
unreasonable search and seizure must perforce operate in favor of accused-appellant. As such, the articles
seized could not be used as evidence against accused-appellant for these are "fruits of a poisoned tree"
and, therefore, must b
rejected, pursuant to Article III, Sec. 3(2) of the Constitution. (People v. Menguin)

WHEN
TO

VOLUNTARY
SEARCH

IS

SUBMISSION
INAPPLICABLE

Aside from the inapplicability of the abovecited case, the act of herein accused-appellant in handing over
her bag to the NARCOM agents could not be construed as voluntary submission or an implied

acquiescence to the unreasonable search. The instant case is similar to People v. Encinada. (People v.
Menguin)
WHEN
ALLOWED
AN
In

the

SEARCH

IS

ARREST
case

of

NOT
AFTER
MADE

IS
People

v.

Lua,

this

Court

held:

"As regards the brick of marijuana found inside the appellant's house, the trial court correctly ignored it
apparently in view of its inadmissibility. While initially the arrest as well as the body search was lawful,
the warrantless search made inside the appellant's house became unlawful since the police operatives
were not armed with a search warrant. Such search cannot fall under "search made incidental to a lawful
arrest," the same being limited to body search and to that point within reach or control of the person
arrested, or that which may furnish him with the means of committing violence or of escaping. In the case
at bar, appellant was admittedly outside his house when he was arrested. Hence, it can hardly be said that
the
inner
portion
of
his
house
was
within
his
reach
or
control.
(Espano
v.
C.A.;
GR
120431,
April
1,
98)

MEANING
IN

OF

TO
DRUG

TRANSPORT
CASES

In People vs. Lo Ho Wing, the Court defined the term "transport", as used under the Dangerous Drugs Act
to mean "to carry or convey from one place to another" , the operative words being "to carry or to
convey". The fact that there is actual conveyance suffices to support a finding that the act of transporting
was committed. It is immaterial whether or not the place of destination was reached. (People v. Latura)

WHEN POLICE OFFICERS INTENTIONALLY PEEPED THRU A WINDOW THEN WENT INSIDE
AND ARRESTED THOSE INSIDE WHO ARE PACKING MARIJUANA. THE SAME IS ILLEGAL
The police officers intentionally peeped first through the window before they saw and ascertained the
activities of accused-appellants inside the room. In like manner, the search cannot be categorized as a
search of a moving vehicle, a consented warrantless search, a customs search, or a stop and frisk; it
cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of any
such
showing.
On the contrary, it indicates that the apprehending officers should have conducted first a surveillance
considering that the identities and address of the suspected culprits were already ascertained. After
conducting the surveillance and determining the existence of probable cause for arresting accusedappellants, they should have secured a search warrant prior to effecting a valid arrest and seizure. The
arrest being illegal ab initio, the accompanying search was likewise illegal. Every evidence thus obtained
during the illegal search cannot be used against accused-appellants; hence, their acquittal must follow in

faithful obeisance to the fundamental law. (PP -vs- ZENAIDA BOLASA Y NAKOBOAN, ET AL., G.R.
No.
125754,
Dec.
22,
1999)

SEARCH AND SEIZURE WITHOUT THE REQUISITE JUDICIAL WARRANT IS ILLEGAL AND
VOID
AB
INITIO
As a general rule, the procurement of a search warrant is required before law enforcer may validly search
or seize the person, house, papers or effects of any individual. In People v. Valdez, the court ruled that
search and seizure conducted without the requisite judicial warrant is illegal and void ab initio.

Lawmen cannot be allowed to violate the very law they are expected to enforce. The Court is not
unmindful of the difficulties of law enforcement agencies in suppressing the illegal traffic of dangerous
drugs. However, quick solutions of crimes and apprehension of malefactors do not justify a callous
disregard of the Bill of Rights. We need not underscore that the protection against illegal search and
seizures is constitutionally mandated and only under specific instances are seizures allowed without
warrants.
In this case, the prosecutions evidence clearly established that the police conducted a search of accuseds
backyard garden without warrant; they had sufficient time to obtain a search warrant; they failed to secure
one. There was no showing of urgency or necessity for the warrantless search, or the immediate seizure of
the marijuana plants. (People vs. Alberto Pasudag)