TITLE FIVE

CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS

Articles 190 – 194 of the Revised Penal Code are repealed by Republic Act No. 6425
“The Dangerous Drugs Act of 1972” which took effect on March 30, 1972 (Sec. 42),
as amended by PD No. 1683 and further amended by RA No. 7659.

THE DANGEROUS DRUGS ACT OF 2002 (RA 9165, repealing RA 6425 and RPC
provisions on crimes related to opium and other prohibited drugs)

POLICY:

1. Campaign against Drugs and Protection of State

2. Balance - Medicinal Purpose
3. Rehabilitation

ACTS PUNISHABLE:

1. Importation of dangerous drugs (even for floral, decorative and culinary

purposes) and/or controlled precursors and essential chemicals.

Qualifying circumstances:

• If the importation was through the use of a diplomatic passport, diplomatic

facilities or any other means involving the offender’s official status.
• Organizes, manages or acts as a financier
NOTE: The protector or coddler is also liable.

2. Sale, administration, delivery, distribution and transportation of dangerous

drugs.

Qualifying circumstances:

• Within 100 meters from a school;

• If minors/mentally incapacitated individuals are used as runners, couriers
and messengers of drug pushers.
• If the victim of the offense is a minor, or should a prohibited/regulated drug
involved in any offense under this section be the proximate cause of the
death of a victim thereof.
• Organizes, manages or acts as financier.

TITLE FIVE – CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS 1

3. Maintenance of a den, dive, or resort where any controlled precursor and
essential chemical is sold or used.

Qualifying circumstances:

• Where a prohibited/regulated drug is administered, delivered, or sold to a

minor who is allowed to use the same in such place; or
• Should a prohibited drug be the proximate cause of the death of the
person using the same in such den, dive or resort.
• Organizes, manages or acts as financier

NOTES:

• The protector or coddler is also liable.

• If place owned by third person, the same shall be confiscated and escheated
in favor of government IF:
a. Complaint specifically allege that such place used intentionally for
furtherance of crime.
b. Prosecution proves intent on part of owner.
c. Owner included as accused in criminal complaint
• Opium Dive or Resort - place where dangerous drug and/or controlled
precursor and essential chemical is administered, delivered, stored for
illegal purposes, distributed, sold or used in any form (To be habitual – prior
conviction, reputation of place)

4. Being employees or visitors of drug den who are aware of the nature of such
place.

• For the employee who is aware of nature of place and any person who
knowingly visits such place.
• A person who visited another who was smoking opium shall not be liable if
the place is not an opium dive or resort.

5. Manufacture of dangerous drugs and/or controlled precursors and essential

chemicals.

Aggravating circumstance: Clandestine lab is undertaken under the

following circumstances:

1. Any phase conducted in presence or with help of minors.

2. Established/undertaken within 100m of residential, business, church or
school premises.
3. Lab secured/protected by booby traps.
4. Concealed with legitimate business operations.
5. Employment of practitioner, chemical engineer, public official or foreigner.

TITLE FIVE – CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS 2

 Qualifying circumstance: Organizes, manages or acts as financier.

NOTES:

• Prima facie proof of manufacture: presence of controlled precursor and

essential chemical or lab equipment in the clandestine lab.
• CLANDESTINE LABORATORY: Any facility used for illegal manufacture of
any dangerous drug and or controlled precursor and essential chemicals.

6. Illegal chemical diversion of precursor and essential chemicals.

CHEMICAL DIVERSION – sale, distribution, transport of legitimately imported, in-

transit, manufactured or procured controlled precursors or essential chemicals to
any person or entity engaged in manufacture of dangerous drug and concealment
of such transaction through fraud, destruction of documents, fraudulent use of
permits, misdeclaration, use of front companies or mail fraud

7. Manufacture or delivery of equipment, instrument, apparatus, and other

paraphernalia for dangerous drugs and/or controlled precursor and
essential chemicals.

Acts Punishable:

1. Deliver
2. Possess with intent to deliver
3. Manufacture with intent to deliver the paraphernalia, knowing, or under
circumstances where one reasonably should know

Qualifying circumstance - use of a minor or a mentally incapacitated

individual to deliver such equipment, instrument, apparatus or other
paraphernalia.

8. Possession of dangerous drugs, regardless of the degree of purity.

Penalties are graduated to the amount of drugs (the only violation where quantity
matters) The kinds of drugs have different respective amounts for the graduation
of penalties.

Qualifying circumstance: Party, social gathering, or in the proximate

company of at least 2 persons, regardless of quantity.

Possession: unauthorized, either actual or constructive, irrespective of quantity,

with intent to possess (full knowledge that what was possessed was any of
prohibited or regulated drug)

TITLE FIVE – CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS 3

 Elements of possession of opium: (RA 6425)

1. Occupancy or taking
2. Intent to possess

NOTES:

• What is punished is present possession, not past possession.

• It is not necessary to allege in information that accused is not authorized to
possess opium

9. Possession apparatus and other paraphernalia fit for introducing dangerous

drugs into the body.

Possession of such equipment = Prima facie evidence that possessor has used a
dangerous drug and shall be presumed to have violated Sec. 15, use of dangerous
drug.

The possession of PARAPHERNALIA is absorbed by USE of dangerous drug.

Qualifying circumstance: Party, social gathering, or in the proximate

company of at least 2 persons.

10. Use of dangerous drugs.

Must be found positive after a confirmatory test

• 1st conviction – minimum of 6 mos. of rehabilitation
• 2nd conviction – imprisonment and fine

Where the accused is also found to be in possession of dangerous drugs, this

Section shall not apply. Sec. 11, possession of dangerous drugs, shall apply.
Hence, USE is subsumed by POSSESSION.

EXAMPLE: If the offender is caught with possession of paraphernalia, possession

of dangerous drugs and use of dangerous drugs, the offense is POSSESSION OF
DANGEROUS DRUGS.

11. Cultivation or culture of plants which are dangerous drugs or are sources
thereof.

The land/portions thereof and/or greenhouses in which any of the said plants is
cultivated or cultured shall be confiscated and escheated to the State, unless the
owner thereof prove that he did not know of such cultivation or culture despite the
exercise of due diligence on his part.

TITLE FIVE – CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS 4

 Qualifying circumstance:

1. The land is part of the public domain

2. Organizes, manages or acts as financier

12. Failure to keep of original records of transactions of dangerous drugs.

Persons liable: practitioner, manufacturer, wholesaler, importer, distributor, dealer,

or retailer.

The additional penalty of revocation of his license to practice his profession in case
of a practitioner, or of his or its business license in case of manufacturer, seller,
importer, distributor or dealer, shall be imposed.

13. Unnecessary prescription of dangerous drugs.

Person Liable: Practitioner who shall prescribe any dangerous drug for any person
whose physical/physiological condition does not require the use of thereof or in the
dosage therein.

14. Unlawful prescription of dangerous drugs.

ALSO PUNISHABLE:

ATTEMPT AND CONSPIRACY TO COMMIT THE FOLLOWING OFFENSES:

1. Importation of dangerous drugs and/or controlled precursor and essential

chemical,
2. Sale, trading, administration, dispensation, delivery, distribution and
transportation of dangerous drugs and/or controlled precursor and essential
chemical,
3. Maintenance of a den, dive or resort for dangerous drugs,
4. Manufacture of dangerous drugs and/or controlled precursor and essential
chemical, and
5. Cultivation or culture of plants which are sources of dangerous drugs.

NOTE:

• The penalty for such attempt and conspiracy is the same penalty prescribed for
the commission. Thus, where the offense of sale was not consummated, the
accused should not be prosecuted under mere possession, but under Section 26.
(Justice Peralta)

TITLE FIVE – CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS 5

OTHER PERSONS LIABLE:

1. Public officer or employee who misappropriates, misapplies or fails to account

for confiscated, seized, or surrendered dangerous drugs, plant sources of
dangerous drugs, etc.
2. Any elective local or national official who have benefited from the proceeds of
trafficking of dangerous drugs or have received any financial/material
contributions or donations from natural or juridical persons guilty of drug
trafficking.
3. If the violation of the Act is committed by a partnership, corporation, association
or any judicial person, the partner, president, director, or manager who
consents to or knowingly tolerates such violation shall be held criminally liable
as co-principal.
4. Partner, president, director, manager, officer or stockholder, who knowingly
authorizes, tolerates, or consents to the use of a vehicle, vessel, or aircraft as
an instrument in the importation, sale, delivery, distribution or transportation of
dangerous drugs, or to the use of their equipment, machines or other
instruments in the manufacture of any dangerous drugs, if such vehicle, vessel,
aircraft, equipment, or other instrument, is owned or under the control and
supervision of the partnership, corporation, association or judicial entity to
which they are affiliated.
5. Any person who is found guilty of “planting” any dangerous drugs and/or
controlled precursor and essential chemicals, regardless of quantity or purity
(penalty of death).
6. Any person violating a regulation issued by the Dangerous Drugs Board
7. Any person authorized to conduct drug test who issues false or fraudulent drug
test results knowingly, willfully or through gross negligence.
8. Any government officer tasked with the prosecution of drug-related cases under
this Act who delays or bungles the prosecution.

NOTES:

• For the purpose of enforcing the provisions of this Act, all school heads,
supervisors and teachers shall be deemed to be persons in authority and, as such,
are vested with the power to apprehend, arrest, or cause the apprehension or
arrest of any person who shall violate any of the said provision. They shall be
considered as persons in authority if they are in the school or within its immediate
vicinity, or beyond such immediate vicinity if they are in attendance in any school
or class function in their official capacity as school heads, supervisors or teachers.
• Any teacher or school employee who discovers or finds that any person in the
school or within its immediate vicinity is violating this Act shall have the duty to
report the violation to the school head or supervisor who shall, in turn, report the
matter to the proper authorities. Failure to report in either case shall, after hearing,
constitute sufficient cause for disciplinary action by the school authorities. (Section
44)

TITLE FIVE – CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS 6

RULES FOR EXEMPTION FROM CRIMINAL LIABILITY OF DRUG DEPENDENTS
THROUGH VOLUNTARY SUBMISSION:

A. Drug dependent who is finally discharged from confinement shall be exempt

subject to the following conditions:

1. Complied with the rules of the Center

2. Never been charged or convicted of any offense under this Act, the
Dangerous Drugs Act of 1972, the RPC, or any special penal laws.
3. No record of escape from the Center; provided if he escaped, he surrendered
by himself or through his parent, spouse, guardian or relative within 1 week.
4. Poses no serious danger to himself, family or community.

B. Voluntary submission of a drug dependent to confinement, treatment and

rehabilitation by the drug dependent himself or through his parent, guardian or
relative within the 4th in a center and compliance with such conditions therefore as
the Dangerous Drugs Board may prescribe shall exempt him from criminal liability
for possession or use of the dangerous drug.

C. Should the drug dependent escape from the center, he may submit himself for
confinement within 1 week from the date of his escape, of his parent guardian or
relative may, within the same period surrender him for confinement.

D. Upon application of the Board, the Court shall issue an order for recommitment if
the drug dependent does not resubmit himself for confinement or if he is not
surrendered for recommitment.

E. If, subsequent to such recommitment, he should escape again, he shall no longer

be exempt from criminal liability for the use or possession of any dangerous drug.

F. If a person charged with an offense with an imposable penalty of less than 6 years
and 1 day, and the Court or prosecutor, at any stage of the proceedings, finds that
the person charged with an offense is a drug dependent, the fiscal or court as the
case may be, shall suspend all further proceedings and transmit records of the
case to the Board. If the Board determines that public interest requires that such
person be committed, it shall file a petition for commitment. After commitment and
discharge, the prosecution shall continue. In case of conviction, the judgment shall,
if certified by the center for good behavior, indicate that he shall be given full credit
for the period of confinement; provided when the offense is use of dangerous
drugs, and the accused is not a recidivist, the penalty shall have deemed to have
been served in the center upon release.

G. The period of prescription of the offense charged shall not run during the time that
the respondent/accused is under detention or confinement in a center.

TITLE FIVE – CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS 7

 H. A drug dependent who is discharged as rehabilitated, but does not qualify for
exemption, may be charged under this Act, but shall be placed on probation and
undergo community service in lieu of imprisonment and/or fine in the court’s
discretion.

I. A drug dependent who is not rehabilitated after the second commitment to the
Center under the voluntary submission program shall, upon recommendation of
the Board, be charged for violation of Section 15, (use of dangerous drug) and be
prosecuted like any other offender. If convicted, he shall be credited for the period
of confinement in the Center.

RULES ON SUSPENSION OF SENTENCE FOR FIRST OFFENSE OF A MINOR:

A. Supervision and rehabilitative surveillance of the Board and under such

conditions that the court may impose for a period of 6-18 months.

Requisites for suspension:

1. Accused is a minor over 15 years at the time of the commission of the

offense but not more than 18 years of age when the judgment should have
been promulgated.
2. He has not been previously convicted of violating this Act, Dangerous Drugs
Act of 1972, RPC or any special penal laws.
3. He has not been previously committed to a Center or to the care of a DOH-
accredited physician.
4. The Dangerous Drugs Board favorably recommends that his/her sentence
be suspended.

NOTE: Where the minor is under 15 years at the time of the commission, Article
192 of Child and Youth Welfare Code shall apply (suspension of sentence and
commitment)

B. The privilege of suspended sentence may be availed of only once.

C. If the minor violates any of the conditions of his suspended sentence, rules of the
Board, or rules of the center, the court shall pronounce judgment of conviction and
he shall serve sentence as any other convicted person.

D. Upon promulgation of sentence, the court may, in its discretion, place the accused
under probation, or impose community service in lieu of imprisonment.

TITLE FIVE – CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS 8

RULES FOR LAB EXAMINATION OF APPREHENDED/ARRESTED OFFENDERS:

1. If reasonable ground to believe that offender is under the influence of dangerous

drugs, conduct examination within 24 hours.
2. Positive results shall be challenged within 15 days after receipt of the result
through a confirmatory test.
3. Confirmed test shall be prima facie evidence that offender has used dangerous
drugs.
4. Positive test must be confirmed for it to be valid in a court of law.

OTHER RULES:

1. In buy-bust operations, there is no law or rule requiring policemen to adopt a

uniform way of identifying buy money.
2. Absence of ultraviolet powder on the buy money is not fatal for the prosecution.
3. If offender is an alien, an additional penalty of deportation without further
proceedings shall be imposed immediately after service of sentence.
4. A person charged under the Dangerous Drugs Act shall not be allowed to avail of
plea-bargaining.
5. A positive finding for the use of dangerous drugs shall be a qualifying aggravating
circumstance in the commission of a crime by the offender.
6. If public official/employee is the offender, the maximum penalty shall be imposed.
7. Any person convicted of drug trafficking or pushing cannot avail of the Probation
Law.
8. Immunity from prosecution and punishment shall be granted to an informant,
provided the following conditions concur:
• Necessary for conviction
• Not yet in the possession of the State
• Can be corroborated on material points
• Has not been previously convicted of a crime of moral turpitude, except
when there is no other direct evidence
• Comply with conditions imposed by the State
• Does not appear to be the most guilty
• No other direct evidence available

Mandatory drug testing includes:

1. All persons charged with a criminal offense having an imposable penalty of not
less than 6 years and 1 day.
2. All candidates for public office, whether appointed or elected.

TITLE FIVE – CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS 9

NOTES:

• Limited applicability of the RPC - The RPC shall not apply to 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 shall be reclusion perpetua to death.
• Hence, since RPC nomenclature of penalties is used, the minor is then entitled to
mitigating circumstances under the RPC (Martin Simon case). Thus, the minor
does not receive the death penalty. (Justice Peralta)

People v. Adam GR 143842, 13 October 2003

Appellant is guilty of the crime of attempted sale of shabu. As gleaned from the testimony
of the poseur-buyer, the appellant merely showed the bag containing the shabu and held
on to it before it was confiscated. There is no evidence that the poseur- buyer talked about
and agreed with the appellant on the purchase price of the shabu. There is no evidence
that the appellant handed over the shabu to the poseur buyer

People v. Yang, GR 148077, 16 February 2004

The consummation of the crime charged herein may be sufficiently established even in
the absence of an exchange of money. The offer to sell and then the sale itself arose
when the poseur-buyer showed the money to appellant, which prompted the latter to show
the contents of the carton, and hand it over to the poseur-buyer. Mere showing of the said
regulated drug does not negate the existence of an offer to sell or an actual sale. The
absence of actual or completed payment is irrelevant, for the law itself penalizes the very
act of delivery of a dangerous drug, regardless of any consideration. Payment of
consideration is likewise immaterial in the distribution of illicit drugs.

People v. Chua, GR 149878, 01 July 2003

In a prosecution for illegal possession of a dangerous drug, mere possession of a

regulated drug without legal authority is punishable under the Dangerous Drugs Act. Lack
of criminal intent or good faith does not exempt appellants from criminal liability.

People v. Cadley, GR 150735, 15 March 2004

A prior surveillance is not a prerequisite for the validity of an entrapment or buy- bust
operation, the conduct of which has no rigid or textbook method.

TITLE FIVE – CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS 10

People v. Del Norte, GR 149462, 31 March 2004

In a prosecution for illegal possession of dangerous drugs, the following facts must be
proven with moral certainty:

1. That the accused is in possession of the object identified as a prohibited or

regulated drug;
2. That such possession is not authorized by law; and
3. That the accused freely and consciously possessed the said drug. In this case,
proof of the accused’s ownership of the house where the prohibited drugs were
discovered is necessary.

NOTES:

What is the PDEA?

The PDEA is the Philippine Drug Enforcement Agency. It serves as the implementing arm
of the Dangerous Drugs Board It shall be responsible for the efficient and effective law
enforcement of all the provisions on any dangerous drug and/or controlled precursor and
essential chemical as provided in this Act. Section 82, Article IX, RA 9165.

What are the functions of the Dangerous Drugs Board?

• The Board shall be the policy-making and strategy-formulating body in the planning
and formulation of policies and programs on drug prevention and control.
• Develop and adopt a comprehensive, integrated, unified and balanced national
drug abuse prevention and control strategy.
• Under the Office of the President.

How long will the drug dependent be confined for treatment and rehabilitation?

Confinement in a Center for treatment and rehabilitation shall not exceed one (1) year,
after which time the Court, as well as the Board, shall be apprised by the head of the
treatment and rehabilitation center of the status of said drug dependent and determine
whether further confinement will be for the welfare of the drug dependent and his/her
family or the community.

TITLE FIVE – CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS 11