E. Title V – Crimes Relative to Opium and Other Prohibited Drugs

F. Comprehensive Dangerous Drugs Act of 2002

(R.A. No. 9165, as amended by R.A. No. 10640, secs. 4, 5, 6, 11-15, 21, 23-27, 29, 66, 68 and 98; A.M. 18-03-16- SC; IRR of R.A. No. 9165, sec. 21)

F. Comprehensive Dangerous Drugs Act of 2002

COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 (R.A. NO. 9165, AS AMENDED BY R.A. NO. 10640)

Den, Dive, Resort

It is a place where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered, stored for illegal purposes, distributed, sold or used in any form.

a. Importation of dangerous drugs and/or controlled precursors and essential chemicals, regardless of quantity or purity involved.

The maximum penalty shall be imposed when:

• Done through the use of a diplomatic passport, diplomatic facilities, or any other means involving an offenders' official status intended to facilitate unlawful entry; and
• Acting as organizer, manager, or financier. (Sec. 4)

b. Sale, trading, administration, dispensation, delivery, distribution and transportation of dangerous drugs and/or controlled precursors and essential chemicals, including any and all species of opium poppy regardless of the quantity and purity involved.

The maximum penalty shall be imposed when:

• It transpires within one hundred (100) meters from the school.
• Using minors or mentally incapacitated individuals as runners, couriers and messengers, or in any other capacity.
• The victim of the offense is a minor or a mentally incapacitated individual, or should a dangerous drug and/or a controlled precursor and essential chemical involved in any offense herein provided be the proximate cause of death of a victim.
• Acting as organizer, manager, or financier. (Sec. 5)

c. Maintenance of a den, dive or resort. The maximum penalty shall be imposed when:

a. Any dangerous drug is administered, delivered or sold to a minor who is allowed to use the same in such a place.

b. Acting as organizer, manager, or financier. (Sec. 6)

f. Illegal chemical diversion of controlled precursors and essential chemicals (Sec. 9)

Chemical diversion is 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.

g. Manufacture or delivery of equipment, instrument, apparatus, and other paraphernalia for dangerous drugs and/or controlled precursors and essential chemicals. The maximum penalty shall be imposed when any person, who uses a minor or a mentally incapacitated individual to deliver such equipment, instrument, apparatus and other paraphernalia for dangerous drugs. (Sec. 10)

h. Possession of dangerous drugs, regardless of purity of the quantities laid down in the act. (Sec. 11)

Use is presumed in possession

If person who has tested positive is also found in possession of dangerous drugs beyond mere residue, he should be prosecuted under possession. Hence, USE is subsumed by POSSESSION in that case.

EXC: where the presence of dangerous drugs as basis for possession is only and solely in the form of residue, it would be more in keeping with the intent of the law to file charges under use, and not possession. (People v. Martinez, G.R. No. 191366, December 13, 2010)

Elements of possession

• the accused is in possession of an item or object, which is identified to be prohibited or regulated drug;
• such possession is not authorized by law; and
• the accused freely and consciously possessed the drug. ((People v. Cañete y Fernandez, G.R. No. 242018, July 3, 2019)

Illegal possession is mala prohibita hence intent is not an element, but prosecution must still prove intent to possess.

Despite the offense of illegal possession of dangerous drugs being malum prohibitum, this, however, does not lessen the prosecution's burden because it is still required to show that the prohibited act was intentional. In cases involving the illegal possession of dangerous drugs, "the prosecution is not excused from proving that possession of the prohibited act was done 'freely and consciously,' which is an essential element of the crime." Hence, a critical element of the crime of illegal possession of dangerous drugs is the element of intent to possess or animus possidendi.

In criminal cases involving prohibited drugs, there can be no conviction unless the prosecution shows that the accused knowingly, freely, intentionally, and consciously possessed the prohibited articles in his person, or that animus possidendi is shown to be present together with his possession or control of such article.

The concept of possession contemplated under Section 11 of R.A. No. 9165 goes beyond mere actual and physical possession of the drug specimen. Otherwise, an unsuspecting person who is victimized by the planting of evidence will be unjustly prosecuted based on the sheer fact that illegal drugs were found to be in his possession. It must be proven that the person in whose possession the drug specimen was found knew that he/she was possessing illegal drugs. Therefore, to prosecute an accused for illegally possessing illegal drugs, it is not enough to show that the accused knowingly and intentionally possessed the bag or receptacle that contained illegal drugs. The prosecution must go beyond and provide evidence that the accused knowingly, freely, consciously, and intentionally possessed illegal drugs. Jurisprudence tells us that since knowledge refers to a mental state of awareness of a fact and, therefore, courts cannot penetrate the mind of an accused and thereafter state its perceptions with certainty, resort to other evidence is necessary. Hence, animus possidendi, as a state of mind, may be determined on a case-to-case basis by taking into consideration the prior or contemporaneous acts of the accused, as well as the surrounding circumstances. (Luna v. People, G.R. No. 231902, June 30, 2021)

Possession can be actual or constructive

Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. (People v. Baer, G.R. No. 228958, August 14, 2019)

Exclusive possession or control is not necessary.

“The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another.” However, the prosecution must prove that the accused had knowledge of the existence and presence of the drug in the place under his control and dominion and the character of the drug. (Santos y Comprado v People, G.R. No. 242656, August 14, 2019)

i. Possession of equipment, instrument, apparatus and other paraphernalia for fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body (Sec. 12).

j. Possession of dangerous drugs during parties, social gatherings or meetings, or in the proximate company of at least two (2) persons, regardless of quantity and purity, shall suffer maximum penalty (Sec. 13).

k. Possession of equipment, instrument, apparatus and other paraphernalia for fit or 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) persons shall suffer maximum penalty (Sec. 14).

l. Use of Dangerous Drugs, after being found positive via a confirmatory test. (Sec. 15)

As discussed under Sec. 11, this provision is not applicable if the person tested is also found to have in his/her possession such quantity of any dangerous drug provided under Sec. 11.

The conviction for illegal use of drugs presupposes the conduct of two tests: a screening test and a confirmatory test. Screening tests are conducted to rapidly eliminate a negative result. Where the accused was subjected to a urine test after his apprehension but no confirmatory test was conducted to verify the result, the accused could not be convicted under Section 15 of RA 9165. (People v. Lopez y Canlas, G.R. No. 247974, July 13, 2020)

m. Cultivation or culture of plants classified as dangerous drugs or are sources thereof (Sec. 16).

n. Failure to maintain or keep original records of transactions on Dangerous Drugs and/or controlled precursors and essential chemicals (Sec. 17).

o. Unnecessary prescription of dangerous drugs – It is the act of prescribing any dangerous drug to any person whose physical or physiological condition does not require the use or in the dosage prescribed therein (Sec. 18).

p. Unlawful prescription of drugs – Any person, who, unless authorized by law, shall make or issue a prescription or any other writing purporting to be a prescription for any dangerous drug (Sec. 19)

Rules on Chain Custody

• For seizures pursuant to a search warrant, the inventory and photographs must be done at the place where the warrant is served. For warrantless seizures, they must be done at the nearest police station or nearest office of the apprehending officer/team, whichever is practicable, in the presence of the accused, or his/her representative or counsel with:
• An elected public official; and
• Representative of the National Prosecution Service or the media.
• Within 24 hours from seizure, items must be submitted to the PDEA Forensic laboratory for examination.
• Immediately upon receipt of the subject item/s, a certification under oath of the forensic laboratory examiner shall be made.
• Within 72 hours from filing of criminal case, an ocular inspection shall be made.
• Within 24 hours after the court's ocular inspection, the PDEA shall proceed with the destruction or burning of the seized items, subject to the statutory safeguards, 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 or the National Prosecution Service, civil society groups and any elected public official.
• A representative sample in min. quantity shall be retained. Those that belong to lawful commerce shall be donated or recycled for legitimate purposes.
• Sworn certification of destruction shall be issued by the Board and submitted to the court with jurisdiction of the case, along with the sample.
• Accused or representative are allowed to observe proceedings. If accused has no counsel within 72hrs from written notice prior to destruction, court shall appoint a counsel from PAO.
• Within 24 hours from receipt of judgment – trial prosecutor shall inform the Board and request for leave to turn over the samples to PDEA for destruction.

Non-compliance with Sec 21(1) under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures and custody over said items.

Updated: The prosecution must justify deviations from Section 21’s chain-of-custody safeguards, including missing inventory witnesses, and prove the seized drugs’ identity and integrity beyond reasonable doubt (David v. People, G.R. No. 253336, 10 May 2021; People v. Ildefonso, G.R. No. 249858, 19 February 2025).

Prior surveillance is not needed in a buy bust operation

The fact that no surveillance was conducted prior to the buy-bust operation was not crucial for X’s conviction for as long as the evidence on record duly established the presence of all elements of the crime. (People v. Lopez y Canlas, G.R. No. 247974, July 13, 2020)

Lone Testimony of Poseur-Buyer not Enough

Lone Testimony of Poseur-Buyer May Suffice

In order to convict a person charged with the crime of illegal sale of dangerous drugs under Section 5, Article II of RA 9165, the prosecution is required to prove the following elements: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor. The testimony of a lone poseur-buyer may suffice if credible and if all elements of illegal sale, including the identity and integrity of the seized drug, are proved beyond reasonable doubt. In this case, it is not clear whether SPO1 Z and PO2 Y actually saw the transaction or simply rushed up to arrest the accused after a pre-arranged signal was given. Even though SPO1 X was able to expound more on the supposed transaction on cross-examination, it must be emphasized that such testimony on the specific details of the drug transaction was left uncorroborated by the other witnesses' testimonies. Lack of corroboration alone does not warrant acquittal; the court must assess the testimony's credibility together with proof of the drug's identity and integrity. Noncompliance with Section 21 of RA 9165, as amended by RA 10640, cannot be excused merely by invoking the presumption of regularity. (People v. Ordiz, G.R. No. 206767, September 11, 2019.)

Caguioa concurring:

• The phrase "immediately after seizure and confiscation" means that the physical inventory and photographing of the drugs were intended by the law to be made immediately after, or at the place of apprehension. And only if this is not practicable can the inventory and photographing then be done as soon as the apprehending team reaches the nearest police station or the nearest office
• The required witnesses should already be physically present at the time of apprehension — a requirement that can easily be complied with by the buy-bust team considering that the buy-bust operation is, by its nature, a planned activity.
• Showing the transfer of hands of the drugs without showing compliance with the inventory and photographing requirements gives rise to the possibility that the drugs could have been planted, and thus the marking and transfers prove the chain of custody of planted drugs.
• In cases involving procedural lapses of the police officers, proving the identity of the corpus delicti despite noncompliance with Section 21 requires the saving clause to be successfully triggered.
• For this purpose, the prosecution must satisfy its two-pronged requirement: first, credibly justify the noncompliance, and second, show that the integrity and evidentiary value of the seized item were properly preserved. (Lim v. People, G. R. No. 231989, 2018)