UPDATED

SPECIAL PENAL LAWS

By:
JUDGE OSCAR B. PIMENTEL
Regional Trial Court, Branch 148,
Makati City

INDETERMINATE SENTENCE LAW

(Act No. 4103 as amended by Act No. 4225)

WHEN AN ACCUSED IS SENTENCED TO RECLUSION PERPETUA, HE IS NOT

ENTITLED TO THE APPLICATION OF THE INDETERMINATE SENTENCE LAW
Accused-appellant cannot avail of the benefits of the Indeterminate Sentence
Law because Indeterminate Sentence Law does not apply to persons convicted of
offenses punishable with reclusion perpetua.
(People v. Aquino; GR 125906, Jan. 16, 98)
APPLICATION OF INDETERMINATE
SENTENCE LAW EXPLAINED
In the case of People vs. Gabres, the Court has had occasion to so state that

"Under the Indeterminate Sentence Law, the maximum term of the penalty
shall be 'that which, in view of the attending circumstances, could be properly
imposed' under the Revised Penal Code, and the minimum shall be within the range
of the penalty next lower to that prescribed' for the offense. The penalty next lower
should be based on the penalty prescribed by the Code for the offense, without first
considering any modifying circumstance attendant to the commission of the crime.
The determination of the minimum penalty is left by law to the sound discretion of
the court and it can be anywhere within the range of the penalty next lower without
any reference to the periods into which it might be subdivided. The modifying
circumstances are considered only in the imposition of the maximum term of the
indeterminate sentence.
"The fact that the amounts involved in the instant case exceed P22,000.00
should not be considered in the initial determination of the indeterminate penalty;
instead, the matter should be so taken as analogous to modifying circumstances in
the imposition of the maximum term of the full indeterminate sentence. This
interpretation of the law accords with the rule that penal laws should be construed
in favor of the accused. Since the penalty prescribed by law for the estafa charge
against accused-appellant is prision correccional maximum to prision mayor
minimum, the penalty next lower would then be prision correccional minimum to
medium. Thus, the minimum term of the indeterminate sentence should be
anywhere within six (6) months and one (1) day to four (4) years and two (2)
months . . ."
(People v. Saley; GR 121179, July 2, 98)
INDETERMINATE SENTENCE LAW;
APPLICABLE ALSO IN DRUG CASES:
The final query is whether or not the Indeterminate Sentence Law is
applicable to the case now before us. Apparently it does, since drug offenses are
not included in nor has appellant committed any act which would put him within the
exceptions to said law and the penalty to be imposed does not involve reclusion
perpetua or death, provided, of course, that the penalty as ultimately resolved will
exceed one year of imprisonment. The more important aspect, however, is how the
indeterminate sentence shall be ascertained. It is true that Section 1 of said law,
after providing for indeterminate sentence for an offense under the Revised Penal
Code, states that "if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of which

shall not exceed the maximum fixed by said law and the minimum shall not be less
than the minimum term prescribed by the same" We hold that this quoted portion of
the section indubitably refers to an offense under a special law wherein the penalty
imposed was not taken from and is without reference to the Revised Penal Code, as
discussed in the preceding illustrations, such that it may be said that the "offense is
punished" under that law. There can be no sensible debate that the aforequoted
rule on indeterminate sentence for offenses under special laws was necessary
because of the nature of the former type of penalties under said laws which were
not included or contemplated in the scale of penalties in Article 71 of the Code,
hence there could be no minimum "within the range of the penalty next lower to
that prescribed by the Code for the offense," as is the rule for felonies therein. In
the illustrative examples of penalties in special laws hereinbefore provided, this rule
applied, and would still apply, only to the first and last examples. Furthermore,
considering the vintage of Act No. 4103 as earlier noted, this holding is but an
application and is justified under the rule of contemporanea expositio. Republic Act
No. 6425, as now amended by Republic Act No. 7659, has unqualifiedly adopted the
penalties under the Revised Penal Code in their technical terms, hence with their
technical signification and effects. In fact, for purposes of determining the
maximum of said sentence, we have applied the provisions of the amended Section
20 of said law to arrive at prision correccional and Article 64 of the Code to impose
the same in the medium period. Such offense, although provided for in a special
law, is now in the effect punished by and under the Revised Penal Code.
(People v Martin Simon)
WHEN THE BENEFITS OF INDETERMINATE SENTENCE LAW IS NOT
APPLICABLE;
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.

Offenses punished by death or life imprisonment.

Those convicted of treason (Art. 114), conspiracy or proposal to
commit treason (Art. 115).
Those convicted of misprision of treason (Art. 116), rebellion (Art.
134), sedition (Art. 139), or espionage (Art. 117).
Those convicted of piracy (Art. 122).
Habitual delinquents (Art. 62, par. 5).
Those who escaped from confinement or those who evaded sentence.
Those granted conditional pardon and who violated the terms of the
same (Art. 159). (People v. Corral, 74 Phil. 359).
Those whose maximum period of imprisonment does not
exceed one year.
Those who are already serving final judgment upon the
approval
of the Indeterminate Sentence Law.
those offenses or crimes not punishable by imprisonment such as
distierro and suspension.

RECIDIVISTS ARE ENTITLED TO THE BENEFITS OF THE INDETERMINATE

SENTENCE
Recidivists are entitled to an indeterminate sentence. (People v. Jaramilla, L28547, Feb. 22, 1974). Offender is not disqualified to avail of the benefits of the law
even if the crime is committed while he is on parole. (People v. Clareon, CA 78 O.G.
6701, Nov. 19, 1982).
(Bacar v. De Guzman)
NATURE OF PENALTY
OF RECLUSION PERPETUA

In "People -vs- Conrado Lucas, 240 SCRA 66, the Supreme Court declared
that despite the amendment of Article 27 of the Revised Penal Code, reclusion
perpetua remained an indivisible penalty. Hence, the penalty does not have any
minimum, medium and maximum period. Hence, there is no such penalty of
medium period of reclusion perpetua.
(People versus Tiburcio Baculi, 246 SCRA)
IMPOSITION OF WRONG PENALTY:
IT DOES NOT OBTAIN FINALITY
Suppose the court imposed a penalty of 25 years of reclusion perpetua for
the crime of rape and the accused did not appeal, does the judgment become final
and executory? No, such judgment is null and void because it imposed a nonexistent penalty. Hence, the court may nevertheless correct the penalty imposed on
the accused, that is, reclusion perpetua, it is merely performing a duty inherent in
the court.
(People versus Nigel Gatward, GR No.
119772-73, February 7, 1997)
DIFFERENCE BETWEEN RECLUSION PERPETUA AND LIFE
IMPRISONMENT
The penalty of reclusion perpetua is different from life imprisonment. The
former carries with it accessory penalties, whereas life imprisonment does not carry
with it any accessory penalties; reclusion perpetua is that provided for under the
Revised Penal Code and under crimes defined by special laws using the
nomenclature under the Revised Penal Code ; life imprisonment is that provided for
violations of the Revised Penal Code. Reclusion Perpetua may be reduced by one or
two degrees while life imprisonment cannot be so reduced.
(People -vs- Rolnando Madriaga,
GR No. 82293, July 23, 1992.)
WHICH IS MORE BURDENSOME LIFE IMPRISONMENT OF RECLUSION
PERPETUA
Reclusion perpetua has accessory penalties while life imprisonment does not.
However, life imprisonment does not have a fixed duration or extent while reclusion
perpetua has a duration of from twenty years and one day to forty years. life
imprisonment may span the natural life of the convict.
(People -versus- Rallagan,
247 SCRA 537)
RECLUSION PERPETUA AND LIFE IMPRISONMENT CANNOT BE INTER-CHANGE
WHEN IMPOSED AS PENALTY
Where the law violated provides for the penalty of reclusion perpetua, impose the said
penalty and not the penalty of life imprisonment. Where the law imposes the penalty of
life imprisonment, do not impose reclusion perpetua.

(People -vs- Rolando Madriaga, 211 SCRA 698)

THE REASON WHY RECLUSION PERPETUA HAS A RANGE DESPITE THE SAME
BEING INDIVISIBLE
There we also said that "if reclusion perpetua was reclassified as a divisible penalty,
then Article 63 of the Revised Penal Code would lose its reason and basis for
existence." The imputed duration of thirty (30) years of reclusion perpetua, therefore,
only serves 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 -vs- Aspolinar Raganas, et al
GR No. 101188, October 12, 1999)
RARE CASE OF APPLICATION OF RPC IN A SUPPLETORY CHARACTER DESPITE
THE PENALTY BEING LIFE IMPRISONMENT
Where the accused committed qualified violation of PD 704 (fishing with the use of
explosives), the imposable penalty for which is life imprisonment to death. If the
accused is entitled to a mitigating circumstance of voluntary surrender, the court should
impose life imprisonment applying, in a suppletory character, Articles 13 and 63 of the
Revised Penal Code.
(People -vs- Priscilla Balasa, GR No. 106357, September 3, 1998)
ACCUSED WHO IS SENTENCED TO RECLUSION PERPETUA IS STILL ENTITLED
TO EITHER FULL OR OF HIS PREVENTIVE IMPRISONMENT
If, during the trial, the accused was detained but, after trial, he was meted the
penalty of reclusion perpetua, he is still entitled to the full credit of his preventive
imprisonment because Article 29 of the Revised Penal Code does not distinguish
between divisible and indivisible penalties.
(People -vs- Rolando Corpuz,
231 SCRA 480)
JUDY JOBY LOPEZ VS. PEOPLE OF THE PHILIPPINES, G.R. NO. 166810, JUNE
26, 2008
The Indeterminate Sentence Law provides that if an offense is punished by the
Revised Penal Code or its amendments, the court shall sentence the accused to an
indeterminate penalty, the maximum term of which shall be that which, in view of the
attending circumstances, can be properly imposed under the rules of the Revised Penal
Code, while the minimum term of which shall be within the range of the penalty next
lower to that prescribed by the Code for the offense.
Under Article 315, as amended by P.D. No. 818, the penalty of reclusion
temporal is imposed if the amount defraud is over P12,000.00 but does not exceed
P22,000.00. The amount involved in this case is within the above-mentioned range.
Applying the Indeterminate Sentence Law, the maximum imposable penalty is
reclusion temporal while the minimum term should be within the range of the penalty
next lower to that prescribed by the Code for the offense, which is prision mayor.
Thus, the CA correctly affirmed the penalty imposed by the trial court which is six (6)
years and one (1) day of prision mayor as minimum to twelve years (12) and one (1)
day of reclusion temporal as maximum.

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 (P.D. 968)
and its AMENDMENTS
PROBATION, ITS 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 OF PETITION
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 PRIVILEGES THAT MAYBE GIVEN TO THE ACCUSEDPETITIONER?

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 a 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 A 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, and as the penalty is
probationable, and the appellate court sustains the accused, he is deemed to have
abandoned his right to probation. 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 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 4 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 involve 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 A RIGHT
BUT A PRIVILEGE
Probation is a mere privilege and its grant rest 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

10

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. They deserve no
less than the maximum penalty [of death]."

11

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).
Santos v. Cruz-Pano, 1/17/83

12

Probation is a mere privilege and its grant rests solely upon the discretion of the
court. As aptly noted in U.S. vs. Durkem, 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.
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.
IT IS NOT THE TOTALITY OF THE PENALTIES IMPOSED FOR ALL CASES THAT
DETERMINES WHETHER THE CASE IS PROBATIONABLE OR NOT.
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 correccinal 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 vs. CA 4/15/1995)

ANTI-FENCING LAW
OF 1979 (PD NO. 1612)
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 AntiFencing Law were subsequently formulated and it took effect on June 15, 1979.

13

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 THE ANTI-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.

14

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

15

c. Place where the articles are presently deposited.

The Station Commander may, require the submission of an
accompanied by other documents showing proof of legitimacy of acquisition.

affidavit

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
case permit. In any case it shall be the duty
advise/notify the Commission on Audit of the
may be proper under applicable existing laws,

disposed of as the circumstances of each

of the Station Commander concerned to
case and comply with such procedure as
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

16

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 OF FENCING
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

17

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 Anti-Fencing 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

18

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 A 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

19

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. 2 OR ANTI-FENCING
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 in Pasay Road, Makati. The said stereo was
bought from Wynns 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. Consuji, Inc., later found to be in
premise 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 to 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 Anti-Fencing 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 ulawful act. (Cunlao v. CA) again, intent to gain is a mental state,
the existence of which is demonstrated by the overt acts as person, as the keeping of
stolen items for subsequent selling.
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 1612 creates a presumption of fencing and
prescribes a higher penalty based on the value of the property. (supra)
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)

20

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 PAMBANSA BLG. 22

BOUNCING CHECKS LAW
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 OF BP 22
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

21

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 case, the Judge was even held administratively liable.
CHECK DRAWN AGAINST
A DOLLAR 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

22

OF THE LAW AND ITS PURPOSE

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 CRIMINALLY LIABLE FOR
ISSUING A CHECK WITH SUFFICIENT
FUNDS FOR VIOLATION OF BP 22?
Yes. Paragraph 2 of Section 1 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-95-1326, 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

23

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. 75217-18, 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. (Now, MTC, MCTC or MeTC)
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 (now, MeTC) 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 (MeTC).
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

24

estafa if a check is issued in payment of a pre-existing 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, A 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)

25

THE PENALTY OF IMPRISONMENT IN CASES OF VIOLATION OF B.P. 22

WAS NOT DELETED.
A word on the
modified penalty imposed by the RTC. Contrary to its reasoning, the penalty of
imprisonment in cases of violation of B.P. 22 was not deleted. As clarified by
Administrative Circular 13-2001, the clear tenor and intention of Administrative Circular
12-2000 is not to remove imprisonment as an alternative penalty, but to lay down a
rule of preference in the application of the penaltie provided for in B.P. 22.
(Bernardo vs. People, G.R. No. 166980, April 3, 2007)
THE 90-DAY PERIOD IS NOT AN ELEMENT OF THE OFFENSE
In Wong v. Court
of Appeals, the Court ruled that the 90-day period provided in the law is not an element
of the offense. Neither does it discharge petitioner from his duty to maintain sufficient
funds in the account within a reasonable time from the date indicated in the check.
According to current banking practice, the reasonable period within which to present a
check to the drawee bank is six months. Thereafter, the check becomes stale and the
drawer is discharged from liability thereon to the extent of the loss caused by the delay.
(Arceo, Jr. vs. People, G.R. No. 142641, July 17, 2009)
VIOLATION OF B.P. 22
Where a creditor has collected more than a sufficient amount to cover the value of the
checks, charging the debtor with a criminal offense under the Bouncing checks Law a
long time after the collection is no longer tenable nor justified by law or equitable
consideration is not a Violation of BP 22.
(Cruz vs. Cruz, G.R. No. 154128, February 8, 2007)
While indeed the gravamen of violation of B.P. Blg. 22 is the act of issuing worthless
checks, considering that, in this case, petitioner had paid the amount of the check even
before respondent filed his complaint, we believe and so hold that no injury was caused
to the public interests or the banking system, or specifically to herein respondent.
While indeed the gravamen of violation of B.P. Blg. 22 is the act of issuing worthless
checks, nonetheless, courts should not apply the law strictly or harshly. Its spirit and
purpose must be considered.
In Lozano v. Martinez (146 SCRA 323) we held that the Bouncing Checks Law is
aimed at putting a stop to or curbing the practice of issuing worthless checks or those
that end up being dishonored for payment because of the injury it causes to the public
interests. In Sia v. People (428 SCRA 206) we explained that the law is intended to
safeguard the interests of the banking system and the legitimate checking account
users.
Considering that petitioner had paid the amount of the check even before
respondent filed his complaint, we believe and so hold that no injury was caused to the
public interests or the banking system, or specifically to herein respondent.
(Cruz vs. Cruz, G.R. No. 154128, February 8, 2007)
BP 22 INCLUDES THE MAKING AND ISSUANCE OF A CHECK BY ONE WHO
HAS NO ACCOUNT WITH A BANK

26

The law is broad enough to include, within its coverage, the making and
issuance of a check by one who has no account with a bank, or where such account has
already been closed when the check was presented for payment. As the Court in
Lozano explained: The effect of the issuance of a wortheless checks transcends the
private interests of the parties directly involved in the transaction and touches the
interests of the community at large. The mischief it creates is not only a wrong to the
payee or holder, but also an injury to the public. The harmful practice of putting
valueless commercial papers in circulation, multiplied a thousandfold, can very well
pollute the channels of trade and commerce, injure the banking system and eventually
hurt the welfare of society and the public interest. Considering that the law imposes a
penal sanction on one who draws and issues a worthless checks against insufficient
funds or a closed account in the drawee bank, there is likewise, every reason to
penalize a person who indulges in the making and issuing of a check on an account
belonging to another with the latters consent, which account has been closed or has no
funds or credit with the drawee bank. (Ruiz vs. People, G.R. No. 160893, November
18, 2005)
RICARDO SUAREZ VS. PEOPLE OF THE PHILIPPINES, G.R. 172573, June
19, 2008
To commit a violation of B.P. Blg. 22, the following elements must be present
and proved:
1. the making, drawing and issuance of any check to apply for account or
for value;
2. the knowledge of the maker, drawer, or issuer that at the time of issue
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
3. the subsequent dishonor of the check by the drawee bank for
insufficiency of funds or credit or dishonor for the same reason had not
the drawer, without any valid cause, ordered the bank to stop
payment.
B.P. Blg. 22 creates a presumption of knowledge of insufficiency of funds under
the following circumstances:
Sec. 2. Evidence of knowledge of insufficient funds. The making,
drawing, and issuance of a check payment of which is refused by the
drawee because of insufficient funds or credit with such bank, when
presented within ninety days from the date of the check, shall be
prima facie evidence of knowledge of such insufficiency of funds or
credit unless such maker or drawer pays the holder thereof the
amount due thereon, or makes arrangements for payment in full by
the drawee of such check within five (5) banking days after receiving
notice that such check has not been paid by the drawee.
The presumption arises when it is proved that the issuer had received this
notice, and that within five banking days from its receipt, he failed to pay the amount
of the check or to make arrangements for its payment. The full payment of the amount
appearing in the check within five banking days from notice of dishonor is a complete
defense. Accordingly, procedural due process requires that a notice of dishonor be sent
to and received by the petitioner to afford the opportunity to avert prosecution under
B.P. Blg. 22.

27

JOHN DY VS. PEOPLE OF THE PHILIPPINES, G.R. NO. 158312, NOVEMBER 14,
2008
To be liable under Section 1 of B.P. Blg. 22, the check must be dishonored by
the drawee bank for insufficiency of funds or credit or dishonored for the same reason
had not the drawer, without any valid cause, ordered the bank to stop payment.
Significantly, like Article 315 of the Revised Penal Code, B.P. Blg. 22 also speaks
only of insufficiency of funds and does not treat of uncollected deposits. To repeat, we
cannot interpret the law in such a way as to expand its provision to encompass the
situation of uncollected deposits because it would make the law more onerous on the
part of the accused. Again, criminal statutes are strictly construed against the
Government and liberally in favor of the accused.

ANTI-GRAFT & CORRUPT PRACTICES ACT

(RA NO 3019)
ANTI-GRAFT AND CORRUPT
PRACTICES ACT
Corrupt practices of public 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

28

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,

29

although there may be instances where both elements concur.

Garchitorena, et al., 2 Dec. 93).

(Santiago vs

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. 3 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;

30

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
. . ."

31

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 re-election 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 selfoperative. 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

32

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 preventive 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)

33

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

34

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
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."

4)

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 A 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)

35

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)
SECTION 3(B), RA 3019
ELEMENTS
1.
2.
3.
4.
5.

The offender is a public officer

Who requested or received a gift, a present, a share, a percentage, or a benefit
On behalf of the offender or any other person
In connection with a contract or transaction with the government
In which the public officer, in an official capacity under the law, has the right to
intervene.
(Garcia vs. Sandiganbayan, G.R. No. 155574, November 20, 2006)

SECTION 3(h) of the Anti-Graft Law

ESSENTIAL ELEMENTS
1. The accused is a public officer;
2. He has a direct or indirect financial or pecuniary interest in any business, contract
or transaction;
3. He either:
a. Intervenes or takes part in his official capacity in connection with such interest;
or
b. Is prohibited from having such interest by the Constitution or by law.

TWO MODES BY WHICH A PUBLIC OFFICER MAY VIOLATE SEC. 3(H) OF RA

3019
In other words, there are two modes by which a public officer who has a direct
or indirect financial or pecuniary interest in any business contract or transaction may
violate Sec. 3(h) of RA 3019. The first mode is when the public officer intervenes or
takes part in his official capacity in connection with his financial or pecuniary interest in
any business, contract or transaction. The second mode is when he is prohibited from
having such an interest by the Constitution or by law. (Domingo vs. Sandiganbayan,
G.R. 149175, October 25, 2005)

36

THE PRESCRIPTIVE PERIOD FOR THE OFFENSES SHOULD BE COMPUTED FROM

THE DISCOVERY OF THE COMMISSION THEREOF
The issue of prescription has long been laid to rest in the aforementioned
Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, where the
Court held:
x x x it was well-nigh impossible for the State, the aggrieved party, to
have known the violations of R.A. No. 3019 at the time the questioned
transactions were made because, as alleged, the public officials
concerned connived or conspired with the "beneficiaries of the loans.'
Thus, we agree with the COMMITTEE that the prescriptive period for the
offenses with which respondents in OMB-0-96-0968 were charged
should be computed from the discovery of the commission thereof and
not from the day of such commission.
The assertion by the Ombudsman that the phrase 'if the same not be
known' in Section 2 of Act No. 3326 does not mean 'lack of knowledge'
but that the crime 'is not reasonably knowable' is unacceptable, as it
provides an interpretation that defeats or negates the intent of the law,
which is written in a clear and unambiguous language and thus provides
no room for interpretation but only application.
As to when the period of prescription was interrupted, the second paragraph of
Section 2, Act No. 3326, as amended, provides that prescription is interrupted 'when
proceedings are instituted against the guilty person.
Records show that the act complained of was discovered in 1992. The complaint
was filed with the Office of the Ombudsman on April 5, 1995, or within three (3) years
from the time of discovery. Thus, the filing of the complaint was well within the
prescriptive period of 15 years. (PCGG vs. Desierto, G.R. No. 140231, July 9, 2007)
JURISPRUDENCE:
LINDA CADIAO-PALACIOS VS. PEOPLE, G.R. NO. 168544, MARCH 31, 2009
Section 3(b) penalizes three distinct acts 1) demanding or requesting; 2)
receiving; or 3) demanding, requesting and receiving any gift, present, share,
percentage, or benefit for oneself or for any other person, in connection with any
contract or transaction between the government and any other party, wherein a public
officer in an official capacity has to intervene under the law. Each of these modes of
committing the offense is distinct and different from one another. Proof of existence of
any of them suffices to warrant conviction.
PEOPLE VS. ROMUALDEZ, G.R. NO. 166510, APRIL 29, 2009
The initial filing of the complaint in 1989 or the preliminary investigation by the
PCGG that preceded it could not have interrupted the fifteen (15)-year prescription
period under Rep. Act No. 3019. As held in Cruz, Jr. v. Sandiganbayan, the
investigatory power of the PCGG extended only to alleged ill-gotten wealth cases,
absent previous authority from the President for the PCGG to investigate such graft and

37

corruption cases involving the Marcos cronies. Accordingly, the preliminary investigation
conducted by the PCGG leading to the filing of the first information is void ab initio, and
thus could not be considered as having tolled the fifteen (15)-year prescriptive period,
notwithstanding the general rule that the commencement of preliminary investigation
tolls the prescriptive period. After all, a void ab initio proceeding such as the first
preliminary investigation by the PCGG could not be accorded any legal effect by this
Court.
The rule is that for criminal violations of Rep. Act No. 3019, the prescriptive
period is tolled only when the Office of the Ombudsman receives a complaint or
otherwise initiates its investigation. As such preliminary investigation was commenced
more than fifteen (15) years after the imputed acts were committed, the offense had
already prescribed as of such time.
Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998) (see also sec. 13)
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.
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 the period; otherwise, it will
continue for ninety (90) days.
Conducto v. Monzon, (291 scra 619)
Likewise, it was specifically declared in the case of Ingco vs. Sanchez, G.R. No. L23220, 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 comm.itted during the
Maghirangs 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.
DEATH PENALTY LAW
(RA 7659)

38

PROSTITUTES CAN BE A 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:

39

"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)

40

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)
(2)
(3)
(4)
(5)
(6)

Treason (Sec. 2);

Qualified piracy (Sec. 3);
Parricide (Sec. 5);
Murder (Sec. 6);
Infanticide (Sec. 7);
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);

41

(7)
(8)

(9)

(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)

Robbery with homicide, rape or intentional mutilation (Sec. 9);

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);
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);
Plunder involving at least P50 million (Sec. 12);
Importation of prohibited drugs
(Sec. 13);
Sale, administration, delivery, distribution, and transportation of
prohibited drugs (id.);
Maintenance of den, dive or resort for users of prohibited drugs (id.);
Manufacture of prohibited drugs (id.);
Possession or use of prohibited drugs in certain specified amounts
(id.);
Cultivation of plants which are sources of prohibited drugs (id.)
Importation of regulated drugs
(Sec. 14);
Manufacture of regulated drugs (id.);
Sale, administration, dispensation, delivery, transportation, and
distribution of regulated drugs (id.);
Maintenance of den, dive, or resort for users of regulated drugs (Sec.
15);
Possession or use of regulated drugs in specified amounts (Sec. 16);
Misappropriation, misapplication or failure to account dangerous drugs
confiscated by the arresting officer (Sec. 17);
Planting evidence of dangerous drugs in person or immediate vicinity
of another to implicate the latter (Sec. 19); and
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)

42

(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

43

"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

44

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 A 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

45

"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.

46

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 re-imposed 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 -vs- Astorga)
ELEMENTS OF GRAVE COERCION
Grave Coercion or coaccion grave 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;

47

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 -vs- Astorga)
ACTUAL DETENTION
KIDNAPPING

OR

LOCKING

UP,

AN

ESSENTIAL

ELEMENT

OF

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

48

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.
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)
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)
REPUBLIC ACT 9346
AN ACT PROHIBITING THE IMPOSITION OF DEATH PENALTY IN THE
PHILIPPINES

49

DEATH PENALTY IS PROHIBITED

The imposition of the penalty of death is hereby prohibited. Accordingly,
Republic Act No. 8177, otherwise known as the Act Designating Death by lethal
injection is hereby repealed. Republic Act No. 7659, otherwise known as the Death
Penalty Law, and all other laws, executive orders and decrees, insofar as they impose
the death penalty are hereby repealed or amended accordingly. (Sec. 1)
PENALTIES OF TO IMPOSED INSTEAD OF DEATH
In lieu of the death penalty, the following shall be imposed:
a) The penalty of reclusion perpetua, when the law violated makes use of the
nomenclature of the penalties of the Revised Penal Code;
b) The penalty of life imprisonment, when the law violated does not make use
of the nomenclature of the penalties of the Revised Penal Code. (Sec. 2)
NOT ELIGIBLE FOR PAROLE
Person convicted of offenses punished with reclusion perpetua, or whose
sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be
eligible for parole under Act No. 4180, otherwise known as the Indeterminate Sentence
Law, as amended. (Sec. 3)
The Board of Pardons and Parole shall cause the publication at least once a week
for three consecutive weeks in a newspaper of general circulation of the names of
persons convicted of offenses punished with reclusion perpetua or life imprisonment by
reason of this Act who are being considered or recommended for commutation or
pardon; Provided, however, That nothing herein shall limit the power of the President to
grant executive clemency under Section 19, Article VII of the Constitution. (Sec. 4)

DISQUALIFICATION OF A JUVENILE CONVICTED OF AN OFFENSE PUNISHABLE

BY DEATH, LIFE IMPRISONMENT OR RECLUSION PERPETUA FROM AVAILING
BENEFITS OF A SUSPENDED SENTENCE
The law merely amended Article 192 of P.D. No. 603, as amended by A.M. No.
02-1-18-SC, in that the suspension of sentence shall be enjoyed by the juvenile even if
he is already 18 years of age or more at the time of the pronouncement of his/her
guilt. The other disqualifications in Article 192 of P.D. No. 603, as amended, and
Section 32 of A.M. No. 02-1-18-SC have not been deleted from Section 38 of Rep. Act
No. 9344.
Evidently, the intention of Congress was to maintain the other
disqualifications as provided in Article 192 of P.D. No. 603, as amended, and Section 32
of A.M. No. 02-1-18-SC. Hence, juveniles who have been convicted of a crime the
imposable penalty for which is reclusion perpetua, life imprisonment or reclusion
perpetua to death or death are disqualified from having their sentences suspended.
(Declarador vs. Hon. Gubaton, G.R. No. 159208, August 18, 2006)

ILLEGAL POSSESSION OF FIREARMS

(REPUBLIC ACT NO. 8294)

50

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

51

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
or in connection with
attempted coup d'etat,
the crimes of rebellion,

of this Section is in furtherance of, or incident to,

the crime of rebellion, insurrection, sedition or
such violation shall be absorbed as an element of
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) firearms with expired license; or
2) unauthorized use of licensed firearm in the commission of the crime.
RULE ON ILLEGAL POSSESSION OF FIREARMS BEFORE AN ACCUSED
MAYBE CONVICTED

52

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 MEANING OF ILLEGAL
POSSESSION OF 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.

53

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 POSSESSION OF FIREARM ONLY
SPECIAL AGGRAVATING CIRCUMSTANCE
IN CRIMES OF 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 PENALTY FOR LOW POWERED
FIREARM IN ILLEGAL POSSESSION
OF 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 a 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

54

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.

55

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.
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).
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.
i.

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.

56

iv.

1.4

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.
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 highpowered 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 high-powered 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 testimony 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 and 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 carries 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!

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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 lowpowered 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

58

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 IS NOT AN ESSENTIAL
ELEMENT OF ILLEGAL POSSESSION
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 -vs- Macasling, 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 -vs- Reynaldo 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 vs- Filemon 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 -vs- Walpan 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

59

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 -vs- Victor 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 -vs- Ricolito 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 -vs- Rodolfo 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 -vs- Rodolfo 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 -vs- Felimon 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 -vs- Ricolito 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 -vs- Court 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 Republic 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

60

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 -vs- Court 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 -vs- Court 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 -vs- Felicisimo 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 -vs- People, 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 -vs- Perlito 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. A may be convicted.
(People -vs- Cornelio 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 -vs- Narvasa, G.R. no. 128618 November
18, 1998)
The Decision of the Supreme Court in People -vs- Paterno Tac-an, 182 SCRA
601; People -vs- Jesus 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.

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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 -vs- Felicisimo 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 -vs- Cipriano 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 crimes, 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 -vs- Eduardo 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 -vs- Felicisimo 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

62

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.

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"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 -vsBERNIE 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

64

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)
JURISPRUDENCE:
People vs. Macasaling, 237 SCRA 299
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 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 vs Reynaldo Cruz, G.R. No. 76728, August 3, 1988
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 vs Filemon Ramos, 222SCRA 557
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 vs. Walpan Ladjaamlam, et al., G.R. No. 136149-51, September 19, 2000
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 unlicensed firearm is
neither an aggravating circumstances nor a separate offenses. Since the law used the
word Homicide of Murder, possession of an unlicensed firearm is not aggravating in
Attempted Homicide.
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?
Ernesto Cuenca vs. People, 33 SCRA 522
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 it

65

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.
People vs. Perlito Soyang, et al., 110 Phil. 565, 583
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 of the Philippines vs. Bernie Cortez y Natanio, et.al., G.R. Nos. 13161920, Feb. 1, 2000
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.
People of the Philippines vs. Augusto Loreto Ringor, G.R. No. 123918,
December 9, 1999
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.
ANTI-WIRE TAPPING LAW
(RA 4200)
Sec. 1.
It shall be unlawful for any person, not being authorized by all the parties
to any private communication or spoken word, to tap any wire or cable, or by using any
other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone or
dictagraph or dectaphone or walkie-talkie or tape recorder, or however otherwise
described:
It shall also be unlawful for any person, be he a participant or not in the act or
acts penalized in the next preceding sentence, to knowingly possess any tape record,
wire record, disc record, or any other such record, or copies thereof, of any
communication or spoken word secured either before or after the effective date of this

66

Act in the manner prohibited by this law; or to replay the same for any other person or
persons; or to communicate the contents thereof, either verbally or in writing, or to
furnish transcriptions thereof, whether complete or partial, to any other person:
Provided, That the use of such record or any copies thereof as evidence in any civil,
criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be
covered by this prohibition.
LISTENING TO CONVERSATION
IN EXTENSION LINE OF TELEPHONE
IS NOT WIRE-TAPPING
An extension telephone cannot be placed in the same category as a dictaphone,
dictagraph or the other devices enumerated in Section 1 of RA 4200 as the use thereof
cannot be considered as tapping the wire or cable of a telephone line. The telephone
extension in this case was not installed for that purpose. It just happened to be there
for ordinary office use. It is a rule in statutory construction that in order to determine
the true intent of the legislature, the particular clauses and phrases of the statute
should not be taken as detached and isolated expressions, but the whole and every
part thereof must be considered in fixing the meaning of any of its parts. (66 SCRA
113,120)
A PERSON CALLING ANOTHER BY PHONE
MAY SAFELY PRESUME THAT THE OTHER
MAY HAVE AN EXTENSION LINE AND
RUNS THE RISK OF BEING HEARD BY A
3RD PARTY.
An extension telephone is an instrument which is very common especially now
when the extended unit does not have to be connected by wire to the main telephone
but can be moved from place to place within a radius of a kilometer or more. A person
should safely presume that the party he is calling at the other end of the line probably
has an extension telephone and he runs the risk of a third party listening as in the case
of a party line or a telephone unit which shares its line with another.
MERE ACT OF LISTENING TO A
TELEPHONE CONVERSATION IN AN
EXTENSION LINE IS NOT PUNISHED BY
ANTI-WIRE TAPPING LAW
It can be readily seen that our lawmakers intended to discourage through
punishment, persons such as government authorities or representatives of organized
groups from installing devices in order to gather evidence for use in court or to
intimidate, blackmail or gain some unwarranted advantage over the telephone users.
Consequently, the mere act of listening, in order to be punishable must strictly be with
the use of the enumerated devices in RA 4200 or others of similar nature. We are of the
view that an extension telephone is not among such devices or arrangements.
REPUBLIC ACT 7832. AN ACT PENALIZING THE PILFERAGE OF ELECTRICITY
AND THEFT OF POWER TRANSMISSION LINES/MATERIALS, RATIONALIZING
SYSTEMS LOSSES BY PHASING OUT PILFERAGE LOSSES AS A COMPONENT
THEREOF, AND FOR OTHER PURPOSES.
Purpose:

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Its purpose is to prevent losses by penalizing the pilferage of electricity and

theft of power transmission lines/materials. In order for the electric industry to remain
viable and sustainable, electricity theft must be stopped and discouraged starting from
its origins, the consumers.
Spouses Antonio and Lorna Quisimbing vs. MANILA ELECTTRIC COMPANY RTJ99-1443. G.R. No. 142943, April 3, 2002]
The law says that before immediate disconnection may be allowed, the
discovery of the illegal use of electricity must have been personally witnesses and
attested to b an officer of the law or by authorized ERB representative. In this case,
the disconnection was effected immediately after the discovery of the alleged meter
tampering, which was witnesses only be Meralcos employees.
That the ERB
representative was allegedly present when the meter was examined in the Meralco
laboratory will not cure the defect.
THEFT OF ELECTRICITY AND VIOLATION OF P.D. 401 DISTINGUISHED
It must be stressed that theft of electricity is a felony defined and penalized
under the Revised Penal Code, while Violation of P.D. 401, as amended by B.P. Blg. 876,
is an offense punished by a special law. What generally makes the former a felony is
criminal intent (dolo) or negligence (culpa); what makes the latter a crime is the
special law enacting it. In addition, the elements of the two (2) offenses are different
from one another. In theft, the elements are :(1) intent to gain; (2) unlawful taking;
(3) personal property belonging to another; (4) and absence of violence or intimidation
against persons or force upon things. On the other hand, the crime of Violation of P.D.
401, as amended by B.P. Blg. 876, is mala prohibita. The criminal act is not inherently
immoral but becomes punishable only because the law says it is forbidden. With these
crimes, the sole issue is whether the law has been violated. Criminal intent is not
necessary.
(Diaz vs. Davao Light and Power Co., Inc. et. Al., G.R. 160959, April 4, 2007)
SEXUAL HARASSMENT LAW
(RA 7877)
WORK, EDUCATION OR TRAINING-RELATED
SEXUAL HARASSMENT DEFINED.
Work, education or training-related sexual harassment is committed by an employer,
employee, manager, supervisor, agent of the employer, teacher, instructor, professor,
coach, trainor, or any other person who, having authority, influence or moral
ascendancy over another in a work or training or education environment, demands,
requests or otherwise requires any sexual favor from the other, regardless of whether
the demand, request or requirement for submission is accepted by the object of said
Act.
WHEN SEXUAL HARASSMENT IS COMMITTED:
Work, Education or Training-related Sexual Harassment Defined

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Work, education or training-related sexual harassment is committed by an

employer, employee, manager, supervisor, agent of the employer, teacher, instructor,
professor, coach, trainor, or any other person who, having authority, influence or moral
ascendancy over another in a work or training or education environment, demands,
requests or otherwise requires any sexual favor from the other, regardless of whether
the demand, request or requirement for submission is accepted by the object of said
Act.
In work-related or employment environment:
(1)

(2)
(3)

The sexual favor is made as a condition in the hiring or in the

employment, re-employment or continued employment of said
individual, or in granting said individual favorable compensation,
terms, conditions, promotions, or privileges; or the refusal to grant
the sexual favor results in limiting, segregating or classifying the
employee which in any way would discriminate, deprive or diminish
employment opportunities or otherwise adversely affect said
employee;
The above acts would impair the employee's rights or privileges
under existing labor laws; or
The above acts would result in an intimidating, hostile, or offensive
environment for the employee.

In an education or training environment:

(1)

Against one who is under the care, custody or supervision of the

offender;

(2)

Against one whose education, training, apprenticeship or tutorship is

entrusted to the offender;
When the sexual favor is made a condition to the giving of a passing
grade, or the granting of honors and scholarships or the payment of
a stipend, allowance or other benefits, privileges, or considerations;
or

(3)

(4)

When the sexual advances result in an intimidating, hostile or

offensive environment for the student, trainee or apprentice.

Any person who directs or induces another to commit any act of

sexual harassment as herein defined, or who cooperates in the
commission thereof by another without which it would not have been
committed, shall also be held liable under this Act.
JURISPRUDENCE:
Floralde vs. Court off Appeals, (G.R. No. 123048, August 8, 2000)
Sexual harassment in the workplace is not about a man taking advantage of a
woman by reason of sexual desire; it is about power being exercised by as superior
officer over his women subordinates. The power emanates from the fact that the
superior can remove the subordinate from his workplace if the latter would refuse his
amorous advances.
Domingo v. Rayala, G.R. No. 155831, Feb. 8, 2000

69

Sexual harassment is an imposition of misplaced superiority which is enough

to dampen an employees spirit and her capacity for advancement. It effects her sense
of judgment.
In Domingo v. Rayala, it was held. It is true that this provision calls for a
demand, request or requirement of a sexual favor be articulated in a categorical oral or
written statement. It may be discerned, with equal certitude, from the acts of the
offender.
Bacsin vs. Wahiman, (G.R. No. 146053, April 30, 2008)
In this case, it was held that: In grave misconduct, the elements of corruption,
clear intent to violate the law, or flagrant disregard of established rule must be
manifest. The act of petitioner of fondling one of his students is against law, RA 7877,
and is doubtless inexcusable. The particular act of petitioner cannot in any way be
construed as a case of simple misconduct. Sexually molesting a child is, by any norm,
a revolting act that it cannot be categorized as a grave offense. Parents entrust the
care and molding of their children to teachers, and expect them to be their guardians
while in school. Petitioner has violated that trust. The charge of grave misconduct
proven against petitioner demonstrates his unfitness to remain as a teacher and
continue to discharge the functions of his office.
Esteban vs. Sandiganbayan (G.R. Nos. 146646-49), March 11, 2005
In this case, the Supreme Court held that: While it is true, as petitioner argues,
that public office is not an element of the crime of acts of lasciviousness, defined and
penalized under Article 336 of the Revised Penal Code, nonetheless, he could not have
committed the crimes charged were it not for the fact that the Presiding Judge of the
MTCC, Branch 1, Cabanatuan City, he has the authority to recommend the appointment
of Ana May as bookbinder. In other words, the crimes allegedly committed are
intimately connected with his office.
CHILD AND YOUTH WELFARE CODE
( PD 603 with Amendments)
RELIGIOUS INSTRUCTION
The religious education of children in all public and private schools is a legitimate
concern of the Church to which the students belong. All churches may offer religious
instruction in public and private elementary and secondary schools, subject to the
requirements of the Constitution and existing laws.

TERMINATION OF RIGHTS OF PARENTS

When a child shall have been committed to the Department of Social Welfare or any
duly licensed child placement agency or individual pursuant to an order of the court, his
parents or guardian shall thereafter exercise no authority over him except upon such
conditions as the court may impose.
VIOLATION OF PD 603 BY A CHILD

70

Prohibited Acts:
It shall be unlawful for any child to leave the person or institution to which he has been
judicially or voluntarily committed or the person under whose custody he has been
placed in accordance with the next preceding article, or for any person to induce him to
leave such person or institution, except in case of grave physical or moral danger,
actual or imminent, to the child.
Any violation of this article shall be punishable by an imprisonment of not more than
one year or by a fine of not more than two thousand pesos, or both such fine and
imprisonment at the discretion of the court: Provided, That if the violation is committed
by a foreigner, he shall also be subject to deportation.
CARE OF YOUTHFUL OFFENDER
HELD FOR EXAMINATION OR TRIAL
A youthful offender held for physical and mental examination or trial or pending appeal,
if unable to furnish bail, shall from the time of his arrest be committed to the care of
the Department of Social Welfare or the local rehabilitation center or a detention home
in the province or city which shall be responsible for his appearance in court whenever
required: Provided, That in the absence of any such center or agency within a
reasonable distance from the venue of the trial, the provincial, city and municipal jail
shall provide quarters for youthful offenders separate from other detainees. The court
may, in its discretion, upon recommendation of the Department of Social Welfare or
other agency or agencies authorized by the Court, release a youthful offender on
recognizance, to the custody of his parents or other suitable person who shall be
responsible for his appearance whenever required.
SUSPENSION OF SENTENCE AND COMMITMENT
OF YOUTHFUL OFFENDER
If after hearing the evidence in the proper proceedings, the court should find that the
youthful offender has committed the acts charged against him the court shall determine
the imposable penalty, including any civil liability chargeable against him. However,
instead of pronouncing judgment of conviction, the court shall suspend all further
proceedings and shall commit such minor to the custody or care of the Department of
Social Welfare, or to any training institution operated by the government, or duly
licensed agencies or any other responsible person, until he shall have reached twentyone years of age or, for a shorter period as the court may deem proper, after
considering the reports and recommendations of the Department of Social Welfare or
the agency or responsible individual under whose care he has been committed.
The youthful offender shall be subject to visitation and supervision by a representative
of the Department of Social Welfare or any duly licensed agency or such other officer as
the Court may designate subject to such conditions as it may prescribe.
PD 1210
ARTICLE 191 OF PD 603 IS HEREBY
AMENDED TO READ AS FOLLOWS
"Article 101. Care of Youthful Offender Held for Examination or Trial. - A youthful
offender held for physical and mental examination or trial or pending appeal, if unable
to furnish bail, shall from the time of his arrest be committed to the care of the Dept. of
Social Services and Development or the local rehabilitation center or a detention home

71

in the province or city which shall be responsible for his appearance in court whenever
required: Provided, that in the absence of any such center or agency within a
reasonable distance from the venue of the trial, the provincial, city and municipal jail
shall provide quarters for youthful offenders separate from other detainees. The court
may, in its discretion upon recommendation of the Department of Social Services &
Development or other agency or agencies authorized by the Court, release a youthful
offender on recognizance, to the custody of his parents or other suitable person who
shall be responsible for his appearance whenever required. However, in the case of
those whose cases fall under the exclusive jurisdiction of the Military Tribunals, they
may be committed at any military detention or rehabilitation center.
PD 1210
ARTICLE 192 OF PD 603 AS AMENDED IS FURTHER
AMENDED TO READ AS FOLLOWS:
"Art. 192.
Suspension of sentence and Commitment of Youthful Offender. - If after
hearing the evidence in the proper proceedings, the court should find that the youthful
offender has committed the acts charged against him, the court, shall determine the
imposable penalty, including any civil liability chargeable against him. However, instead
of pronouncing judgment of conviction, the court upon application of the youthful
offender and if it finds that the best interest of the public as well as that of the offender
will be served thereby, may suspend all further proceedings and commit such minor to
the custody or care of the Department of Social Services and Development or to any
training institution operated by the government or any other responsible person until he
shall have reached twenty one years of age, or for a shorter period as the court may
deem proper, after considering the reports and recommendations of the Department of
Social Services and Development or the government training institution or responsible
person under whose care he has been committed.
Upon receipt of the application of the youthful offender for suspension of his
sentence, the court may require the Department of Social Services and Development to
prepare and submit to the court a social case study report over the offender and his
family.
The Youthful offender shall be subject to visitation and supervision by a
representative of the Department of Social Services & Development or government
training institution as the court may designate subject to such conditions as it may
prescribe.
The benefits of this article shall not apply to a youthful offender who has once
enjoyed suspension of sentence under its provisions or to one who is convicted of an
offense punishable by death or life imprisonment or to one who is convicted for an
offense by the Military Tribunals.
PD 1179
APPEAL
The order of the court denying an application for suspension of sentence under the
provisions of Article 192 above shall not be appealable."
RETURN OF THE YOUTHFUL
OFFENDER TO THE COURT

72

Whenever the youthful offender has been found incorrigible or has wilfully failed
to comply with the conditions of his rehabilitation programs, or should his continued
stay in the training institution be inadvisable, he shall be returned to the committing
court for the pronouncement of judgment.
When the youthful offender has reached the age of twenty-one while in
commitment, the court shall determine whether to dismiss the case in accordance with
the extent preceding article or to pronounce the judgment conviction. In the latter
case, the convicted offender may apply for probation under the provisions of
Presidential Decree Numbered Nine Hundred and Sixty-Eight.
In any case covered by this article, the youthful offender shall be credited in the
service of his sentence with the full time spent in actual commitment and detention
effected under the provisions of this Chapter."
RA 7610
CHILD ABUSE LAW
CHILD PROSTITUTION AND
OTHER SEXUAL ABUSE
Children, whether male or female, who for money, profit, or any other consideration or
due to the coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children exploited in prostitution
and other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion perpetua shall be
imposed upon the following:
(a)
Those who engage in or promote, facilitate or induce child prostitution which
include, but are not limited to, the following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by means of
written or oral advertisements or other similar means;
(3) Taking advantage of influence or relationship to procure a child as
prostitute;
(4) Threatening or using violence towards a child to engage him as a
prostitute; or
(5) Giving monetary consideration goods or other pecuniary benefit to
a child with intent to engage such child in prostitution.
(b)
Those who commit the act of sexual intercourse of lascivious conduct with a
child exploited in prostitution or subject to other sexual abuse; Provided, That when the
victims is under twelve (12) years of age, the perpetrators shall be prosecuted under
Article 335, paragraph 3, for rape and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious conduct, as the case may be: Provided, That
the penalty for lascivious conduct when the victim is under twelve (12) years of age
shall reclusion temporal in its medium period; and
(c)
Those who derive profit or advantage therefrom, whether as manager or owner
of the establishment where the prostitution takes place, or of the sauna, disco, bar,
resort, place of entertainment or establishment serving as a cover or which engages in

73

prostitution in addition to the activity for which the license has been issued to said
establishment.
ATTEMPT TO COMMIT
CHILD PROSTITUTION
There is an attempt to commit child prostitution under Section 5, paragraph (a)
hereof when any person who, not being a relative of a child, is found alone with the
said child inside the room or cubicle of a house, an inn, hotel, motel, pension house,
apartelle or other similar establishments, vessel, vehicle or any other hidden or
secluded area under circumstances which would lead a reasonable person to believe
that the child is about to be exploited in prostitution and other sexual abuse.
There is also an attempt to commit child prostitution, under paragraph (b) of
Section 5 hereof when any person is receiving services from a child in a sauna parlor or
bath, massage clinic, health club and other similar establishments. A penalty lower by
two (2) degrees than that prescribed for the consummated felony under Section 5
hereof shall be imposed upon the principals of the attempt to commit the crime of child
prostitution under this Act, or, in the proper case, under the Revised Penal Code.
CHILD TRAFFICKING
Any person who shall engage in trading and dealing with children including, but
not limited to, the act of buying and selling of a child for money, or for any other
consideration, or barter, shall suffer the penalty of reclusion temporal to reclusion
perpetua. The penalty shall be imposed in its maximum period when the victim under
twelve (12) years of age.
ATTEMPT TO COMMIT
CHILD TRAFFICKING
There is an attempt to commit child trafficking under Section 7 of this Act:
(a)
When a child travels alone to a foreign country without valid
reason therefor and without clearance issued by the Department of Social
Welfare and Development or written permit or justification from the
child's parents or legal guardian;
(b)
When a person, agency, establishment or child-caring institution
recruits women or couples to bear a children for the purpose of child
trafficking; or
(c)
When doctor, hospital or clinic official or employee, nurse, midwife,
local civil registrar or any other person simulates birth for the purpose of
child trafficking;
(d)
When a person engages in the act of finding children among lowincome families, hospitals, clinics, nurseries, day-care centers, or other
child-during institutions who can be offered for the purpose of child
trafficking.
A penalty lower two (2) degrees than that prescribed for the consummated
felony under Section 7 hereof shall be imposed upon the principals of the attempt to
commit child trafficking under this Act.

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OBSCENE PUBLICATIONS
AND INDECENT SHOWS
Any person who shall hire, employ, use, persuade, induce or coerce a child to
perform in obscene exhibitions and indecent shows, whether live or in video, or model
in obscene publications or pornographic materials or to sell or distribute the said
materials shall suffer the penalty of prision mayor in its medium period.
If the child used as a performer, subject or seller/distributor is below twelve (12)
years of age, the penalty shall be imposed in its maximum period.
Any ascendant, guardian, or person entrusted in any capacity with the care of a
child who shall cause and/or allow such child to be employed or to participate in an
obscene play, scene, act, movie or show or in any other acts covered by this section
shall suffer the penalty of prision mayor in its medium period.
OTHER ACTS OF NEGLECT, ABUSE,
CRUELTY OR EXPLOITATION AND
OTHER CONDITIONS PREJUDICIAL
TO THE CHILDS DEVELOPMENT
(a)
Any person who shall commit any other acts of child abuse, cruelty or
exploitation or to be responsible for other conditions prejudicial to the child's
development including those covered by Article 59 of Presidential Decree No. 603, as
amended, but not covered by the Revised Penal Code, as amended, shall suffer the
penalty of prision mayor in its minimum period.
(b)
Any person who shall keep or have in his company a minor, twelve (12)
years or under or who in ten (10) years or more his junior in any public or private
place, hotel, motel, beer joint, discotheque, cabaret, pension house, sauna or massage
parlor, beach and/or other tourist resort or similar places shall suffer the penalty of
prision mayor in its maximum period and a fine of not less than Fifty thousand pesos
(P50,000): Provided, That this provision shall not apply to any person who is related
within the fourth degree of consanguinity or affinity or any bond recognized by law,
local custom and tradition or acts in the performance of a social, moral or legal duty.
(c)
Any person who shall induce, deliver or offer a minor to any one
prohibited by this Act to keep or have in his company a minor as provided in the
preceding paragraph shall suffer the penalty of prision mayor in its medium period and
a fine of not less than Forty thousand pesos (P40,000); Provided, however, That should
the perpetrator be an ascendant, stepparent or guardian of the minor, the penalty to be
imposed shall be prision mayor in its maximum period, a fine of not less than Fifty
thousand pesos (P50,000), and the loss of parental authority over the minor.
(d)
Any person, owner, manager or one entrusted with the operation of may
public or private place of accommodation, whether for occupancy, food, drink or
otherwise, including residential places, who allows any person to take along with him to
such place or places any minor herein described shall be imposed a penalty of prision
mayor in its medium period and a fine of not less than Fifty thousand pesos (P50,000),
and the loss of the license to operate such a place or establishment.
(e)
Any person who shall use, coerce, force or
street child or any other child to:

75

intimidate

(1)
(2)
(3)

Beg or use begging as a means of living;

Act as conduit or middlemen in drug trafficking or pushing; or
Conduct any illegal activities, shall suffer the penalty of prision
correccional in its medium period to reclusion perpetua.

For purposes of this Act, the penalty for the commission of acts punishable
under Articles 248, 249, 262, paragraph 2, and 263, paragraph 1 of Act No. 3815, as
amended, the Revised Penal Code, for the crimes of murder, homicide, other intentional
mutilation, and serious physical injuries, respectively, shall be reclusion perpetua when
the victim is under twelve (12) years of age. The penalty for the commission of acts
punishable under Article 337, 339, 340 and 341 of Act No. 3815, as amended, the
Revised Penal Code, for the crimes of qualified seduction, acts of lasciviousness with
the consent of the offended party, corruption of minors, and white slave trade,
respectively, shall be one (1) degree higher than that imposed by law when the victim
is under twelve (12) years age.
The victim of the acts committed under this section shall be entrusted to the
care of the department of Social Welfare and Development.
CHILDREN AS ZONES OF PEACE
Children are hereby declared as Zones of Peace. It shall be the responsibility of
the State and all other sectors concerned to resolve armed conflicts in order to promote
the goal of children as zones of peace. To attain this objective, the following policies
shall be observed.
(a)
Children shall not be the object of attack and shall be entitled to special
respect. They shall be protected from any form of threat, assault, torture or other
cruel, inhumane or degrading treatment;
(b)
Children shall not be recruited to become members of the Armed Forces
of the Philippines of its civilian units or other armed groups, nor be allowed to take part
in the fighting, or used as guides, couriers, or spies;
(c)
Delivery of basic social services such as education, primary health and
emergency relief services shall be kept unhampered;
(d)
The safety and protection of those who provide services including those
involved in fact-finding missions from both government and non-government
institutions shall be ensured. They shall not be subjected to undue harassment in the
performance of their work;
(e)
Public infrastructure such as schools, hospitals and rural health units shall
not be utilized for military purposes such as command posts, barracks, detachments,
and supply depots; and
(f)
All appropriate steps shall be taken to facilitate the reunion of families
temporarily separated due to armed conflict.
RIGHTS OF CHILDREN ARRESTED
FOR REASONS RELATED TO
ARMED CONFLICT

76

Any child who has been arrested for reasons related to armed conflict, either as
combatant, courier, guide or spy is entitled to the following units;
(a)
Separate detention from adults except where families are
accommodated as family units;
(b)
Immediate free legal assistance;
(c)
Immediate notice of such arrest to the parents or guardians of the
child; and
(d)
Release of the child on recognizance within twenty-four (24) hours
to the custody of the Department of Social Welfare and Development or
any responsible member of the community as determined by the court.
If after hearing the evidence in the proper proceedings the court should find that
the aforesaid child committed the acts charged against him, the court shall determine
the imposable penalty, including any civil liability chargeable against him. However,
instead of pronouncing judgment of conviction, the court shall suspend all further
proceedings and shall commit such child to the custody or care of the Department of
Social Welfare and Development or to any training institution operated by the
Government, or duly-licensed agencies or any other responsible person, until he has
had reached eighteen (18) years of age or, for a shorter period as the court may deem
proper, after considering the reports and recommendations of the Department of Social
Welfare and Development or the agency or responsible individual under whose care he
has been committed.
The aforesaid child shall subject to visitation and supervision Development or
any duly-licensed agency such other officer as the court may designate subject to such
conditions as it may prescribe.
The aforesaid child whose sentence is suspended can appeal from the order of the court
in the same manner as appeals in criminal cases.
CONFIDENTIALITY
At the instance of the offended party, his name may be withheld from the public
until the court acquires jurisdiction over the case.
It shall be unlawful for any editor, publisher, and reporter or columnist in case of
printed materials, announcer or producer in case of television and radio broadcasting,
producer and director of the film in case of the movie industry, to cause undue and
sensationalized publicity of any case of violation of this Act which results in the moral
degradation and suffering of the offended party.
PEDOPHILIA IS NOT INSANITY
When accused-appellant was committed to the National Center for Mental
Health, he was not diagnosed as insane but was suffering from pedophilia. Thus, there
is no doubt in our mind that he was sane during his two-year confinement in the center,
pedophilia being dissimilar to insanity.

RA 7658

77

EMPLOYMENT OF CHILDREN
Children below fifteen (15) years of age shall not be employed except:
1)
When a child works directly under the sole responsibility of his parents or
legal guardian and where only members of the employer's family are employed:
Provided, however, That his employment neither endangers his life, safety, health and
morals, nor impairs his normal development; Provided, further, That the parent or legal
guardian shall provide the said minor child with the prescribed primary and/or
secondary education; or
2)
Where a child's employment or participation in public entertainment or
information through cinema, theater, radio or television is essential: Provided, The
employment contract is concluded by the child's parents or legal guardian, with the
express agreement of the child concerned, if possible, and the approval of the
Department of Labor and Employment: and Provided, That the following requirements
in all instances are strictly complied with:
(a)
The employer shall ensure the protection, health, safety, morals
and normal development of the child;
(b)
The employer shall institute measures to prevent the child's
exploitation or discrimination taking into account the system and level of
remuneration, and the duration and arrangement of working time; and
(c)
The employer shall formulate and implement, subject to the
approval and supervision of competent authorities, a continuing program
for training and skills acquisition of the requirements.
In the above exceptional cases where any such child may be employed, the
employer shall first secure, before engaging such child, a work permit from the
Department of Labor and Employment which shall ensure observance of the child.
The Department of Labor and Employment shall promulgate rules and
regulations necessary for the effective implementation of this Section."
IF MINOR DO NOT APPLY FOR
SUSPENSION OF SENTENCE IT IS
DEEMED WAIVED. THE COURT CANNOT
MOTU PROPIO GIVE HIM THE BENEFITS
OF ART. 192
The record, unfortunately for accused-appellant Buena, does not show that he
filed with the trial court an application for suspension of sentence so as to put into
operation the benevolent provisions of Presidential Decree No. 603. The Court,
therefore, has no other choice but to deny him this privilege.
DISCHARGE; REPORT AND ECOMMENDATION
OF THE DEPARTMENT OF SOCIAL WELFARE,
SUBJECT TO JUDICIAL REVIEW

78

It is not the responsibility of this Court to order the release of accused Ricky
Galit without the benefit of a review of the recommendation of the Department of
Social Welfare by the trial court. Art 196 of PD 603 provides: "Art. 196. Dismissal of
the case. If it is shown to the satisfaction of the court that the youthful offender
whose sentence has been suspended, has behaved properly and has shown his
capability to be a useful member of the community, even before reaching the age of
majority, upon recommendation of the Department of Social Welfare, it shall dismiss
the case and order his final discharge." It is therefore clear that in cases where the
DSWD recommends the discharge of a youthful offender, it is the trial court before
whom the report and recommendation is subject to judicial review. Recommendation
alone is not sufficient to warrant the release of a youthful offender. In reviewing the
DSWD's recommendation, the trial judge must not base his judgment on mere
conclusions but should seek out concrete, material and relevant facts to confirm that
the youthful offender has indeed been reformed and is ready to re-enter society as a
productive and law-abiding citizen. Caution, however, is given to the trial court. To
begin with, the youthful offender is not to be tried anew for the same act for which he
was charged. The inquiry is not a criminal prosecution but is rather limited to the
determination of the offender's proper education and rehabilitation during his
commitment in the Training Center and his moral and social fitness to re-join the
community. (Pp. V. Galit; GR 97432, 3/1/94)
SUSPENSION OF SENTENCE NOT APPLICABLE
IF PENALTY IS RECLUSION PERPETUA,
LIFE IMPRISONMENT OR DEATH
As aforesaid, however, accused Ricky Galit and Raquel Tagalog did not appeal
from the judgment of the trial court. Neither did the People question the suspension of
their sentence. The benefits of suspension of sentence are not available where the
youthful offender has been convicted of an offense punishable by life imprisonment or
death. The last paragraph of section 2 of Presidential Decree No. 1210, which amended
certain provisions of P.D. 603, provides:
"The benefits of this article shall not apply to a youthful offender
who has once enjoyed suspension of sentence under its provisions or to
one who is convicted of an offense punishable by death or life
imprisonment or to one who is convicted for an offense by the Military
Tribunals." (Par. 4, Sec. 2, P.D. No. 1179, as amended by P.D. No. 1210;
emphasis supplied)
(Pp. v. Galit, supra.)
EVERY ACCUSED IS PRESUMED TO BE SANE AT THE TIME OF COMMISSION OF
THE CRIME
The law presumes all acts to be voluntary, and that it is improper to presume
that acts were done unconsciously. The quantum of evidence required to overthrow the
presumption of sanity is proof beyond reasonable doubt. Since insanity is in the nature
of a confession and avoidance, it must be proven beyond reasonable doubt. Moreover,
an accused is presumed to have been sane at the time of the commission of the crime
in the absence of positive evidence to show that he had lost his reason or was
demented prior to or during the perpetration of the crime. (Pp. v. Cordova, supra.)
FAILURE OF DEFENSE TO ASK FOR

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SUSPENSION OF ARRAIGNMENT
NEGATES INSANITY
Appellant Eduardo Cordova did not even ask for the suspension of his
arraignment on the ground that he was suffering from insanity. Paragraph (a), Section
12, Rule 116 of the Revised Rules of Court provides that the arraignment of an accused
who appears to be suffering from an unsound mental condition which effectively
renders him unable to fully understand the charge against him and to plead intelligently
thereto, shall be suspended. In the case at bar, Eduardo Cordova even took the witness
stand to testify.
(Pp. V. Cordova, supra.)
CHILD & YOUTH WELFARE CODE,
NOT APPLICABLE TO DEATH OR
RECLUSION PERPETUA SENTENCE
The Child and Youth Welfare Code does not apply to those convicted of offenses
punishable by death, or reclusion perpetua (Presidential Decree No. 603, as amended
by Presidential Decree N. 603, as amended by Presidential Decree Nos. 1179 and
1210). The fact is Bolioc is now twenty-three years old. He is not entitled to a
suspended sentence. He is entitled to a two-degree reduction of the penalty (Art. 68,
RPC). (Pp. V. Mendez; GR L-48131; 5/30/83)
SUSPENSION OF SENTENCE; CANNOT
BE AVAILED OF WHERE OFFENDER IS ALREADY OVER 21 YEARS OLD AT THE
TIME OF PROMULGATION OF HIS SENTENCE
It is true that Venancio Villanueva was a youthful offender as defined by Art.
189 because he was under 21 years of age when he committed the offense on February
22, 1974. However, when he was sentenced on July 30, 1975, he was over 21 years old
and under the terms of Art. 192 (as well as Art. 197) he was no longer entitled to
suspension of sentence. (Villanueva v. CFI; GR L-45798, 12/15/82)
WHEN PRESIDENTIAL DECREE NO. 603
MAY BE GIVEN RETROACTIVE EFFECT
Where P.D. 603 is more favorable to the accused in that the sentence against
them may he suspended, said Decree may be given retroactive effect, not only with the
end in view of giving force and effect to the laudable policies for which the P.D.
otherwise known as the Child and Youth Welfare Code was promulgated, hut also in the
light of the provisions of Article 22 of the Revised Penal Code. (People v. Garcia; GR L45280-81, 6/11/81)
PRESIDENTIAL DECREE NO. 603;
ALTERNATIVE COURSES OF ACTION
OF THE COURT WHEN YOUTHFUL
OFFENDER IS RETURNED AFTER
REACHING THE AGE OF MAJORITY
The trial court has two alternative courses of action with respect to a youthful
offender whose sentence it had suspended and who is returned to the court upon his
reaching the age of majority. These are: (1) to dismiss the case and order the final

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discharge of said offender; or (2) to pronounce the judgment of conviction. In plain and
simple language, it is either dismissal or sentence. (Pp. V. Garcia; supra.)
CIVIL LIABILITY OF YOUTHFUL
OFFENDER, DEFINED
The civil liability for damages referred to is apparently that obligation created by
or arising from the crime, otherwise known as ex delicto the imposition of which is
mandated by Articles 100, 104(3), 107 and 345(1) of the Revised Penal Code, (People
vs. Pea, L-36434, December 20, 1977, 80 SCRA 589, 599) and is based upon a finding
of the guilt of the accused. (Pp. V. Garcia, supra.)
JURISPRUDENCE:
PEOPLE VS. ABELLO, G.R. NO. 151952, MARCH 25, 2009
More importantly, AAA cannot be considered a child under Section 3(a) of
No. 7610 which reads:
(a)

R.A.

Children refers to person below eighteen (18) years of age or those

over but are unable to fully take care of themselves or protect themselves
from abuse, neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition; [Emphasis supplied]

The implementing rules elaborated on this definition when it defined a child as

one who is below 18 years of age or over said age who, upon evaluation of a
qualified physician, psychologist or psychiatrist, is found to be incapable of
taking care of herself fully because of a physical or mental disability or
condition or of protecting herself from abuse.
PEOPLE VS. ADELADO RAGADAO ANGUAC, G.R. NO. 176744, June 5, 2009
Sec. 5(a) of RA 7610 refers to engaging in or promoting, facilitating, or inducing
child prostitution. Sec. 5(b), on the other hand, relates to offenders who commit the
act of sexual intercourse or lascivious conduct with a child exploited in prostitution or
subject to other sexual abuse. The informations charged accused-appellant with
having sexual congress with AAA through force, threats, and intimidation. These
allegations more properly fall under a charge under Sec. 5(b).

PEOPLE OF THE PHILIPPINES VS. ABAY, G.R. NO. 177752, FEBRUARY 24, 2009
Under Section 5(b), Article III of RA 7610 in relation to RA 8353, if the victim of sexual
abuse is below 12 years of age, the offender should not be prosecuted for sexual abuse
but for statutory rape under Article 266-A(1)(d) of the Revised Penal Code and
penalized with reclusion perpetua. On the other hand, if the victim is 12 years or older,
the offender should be charged with either sexual abuse under Section 5(b) of RA 7610
or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code.
However, the offender cannot be accused of both crimes for the same act because his
right against double jeopardy will be prejudiced. A person cannot be subjected twice to
criminal liability for a single criminal act. Likewise, rape cannot be complexed with a

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violation of Section 5(b) of RA 7610. Under Section 48 of the Revised Penal Code (on
complex crimes), a felony under the Revised Penal Code (such as rape) cannot be
complexed with an offense penalized by a special law.

REPUBLIC ACT NO. 8484

(The Access Device Regulation)
An act regulating the issuance and use of access devices, prohibiting fraudulent
acts committed relative thereto, providing penalties and for other purposes.
The recent advances in modern technology have led to the extensive use of
certain devices in commercial transactions, prompting the State to regulate the same.
hence, on February 3, 1998, Congress enacted Republic Act Number 8484, otherwise
known as The Access Devices Regulation Act of 1998.
Termed as "access devices" by RA No. 8484, any card, plate, code, account
number, electronic serial number, personal identification number, or other
telecommunication service, equipment, or instrumental identifier, or other means of
account access t hat can be used to obtain money, good, services or any other thing of
value or to initiate transfer of funds (other than transfer originated solely by paper
instrument) is now subject to regulation. The issuance and use of access devices are
ought to regulate in order to protect the rights and define the liabilities of parties in
commercial transactions involving them.
Essentially, the law imposes duties both to the access device issuer and holder,
and penalize certain acts deemed unlawful for being detrimental to either the issuer or
holder, or both.
The law mandates an access device issuer, or "card issuer," to disclose either in
writing or orally in any application or solicitation to open a credit card account the
following: 1) annual percentage rate; 2) annual and other fees; 3) and balance
calculation method; 4) cash advance fee; and 5)) over the limit fee.
Moreover, the computation used in order to arrive at such charges and fees
required, to the extent practicable, to be explained in detail and a clear illustration of
the manner by which it is made to apply is also necessary.
Nonetheless, there are certain exceptions for the above requirement of
disclosure not to apply. This is when application or solicitation is made through
telephone, provided that the issuer does not impose any annual fee, and fee in
connection with telephone solicitation unless the customer signifies acceptance by using
the card, and that a clear disclosure of the information enumerated in the preceding
paragraph is made in writing within thirty (30) after the consumer requests for the
card, but in no event later than the date of the delivery of the card, and that the
consumer is not obligated to accept the card or account and the consumer will not be
obligated to pay any fees or charges disclosed unless the consumer accepts the card or
account by using the card.
Failure on the part of the issuer to fulfill the above requirements will result in the
suspension or cancellation of its authority to issue credit cards, after due notice and
hearing, by the Banko Sentral ng Pilipinas, the Securities and Exchange Commission
and such other government agencies.

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In sum therefore, the above omission is made punishable if the following

elements occur. One, there is an application or solicitation. Second, such application or
solicitation should include the information required by law. and third, failure on the part
of the issuer to disclose such information.
In one case (Ermitano v. GR No. 127246, April 21, 1999), the Supreme Court
had the occasion to rule on the validity of contracts involving credit cards. The credit
cards holder contended that the credit card company should be blamed for the charges
the same being unwarranted by the contract. As stipulated, once a lost card has been
reported, purchases made thereafter should not accrue on the part of the holder.
The Court said notwithstanding the fact that the contract of the parties is a
contract of adhesion the same is valid. However, if the same should include terms
difficult to interpret as to hide the true intent to the detriment of the holder, holding it
void requires no hesitation. Thus, contracts which provide for ambiguous terms of
payment, imposition of charges and fees may be held void invoking the principle of the
contract of adhesion.
Clearly, in this case decided in 1999, the Court was concerned about an access
device issuer's vulnerability to abuse the provisions of the contract. It is quite
surprising, however, that the Court did not make reference to RA No. 8484 to think that
it was already in effect when the resolution was promulgated.
Nonetheless, in American Express International Co., Inc. vs. IAC (GR NO.
70766, November 9, 1988) Supreme Court turned down the argument of private
respondent grounded on the adhesion principle saying indeed, in a contract of adhesion
the maker of the contract has all the advantages, however, the one to whom it is
offered has the absolute prerogative to accept or deny the same.
On the other hand, an access device holder may be penalized when he or she
fraudulently applied for such device. An access device fraudulently applied for means
any access device that was applied for or issued on account of the use of falsified
document, false information, fictitious identities and addresses, or any form of false
pretense or misrepresentation. Thus, the use, trafficking in, possession, and inducing,
enticing or in any manner allowing one to use access device fraudulently applied for are
considered unlawful.
The element of fraud is indispensable for this provision of RA 8484 to apply. It is
a condition sine qua non before one may be charged with the defined offense.
Thus, the law provides for presumptions of Intent to defraud on the basis of
mere possession, control or custody of: a) an access device without lawful authority; b)
a counterfeit access device; any device making or altering equipment; c) an access
device or medium on which an access device is written not in the ordinary course of the
possessor's business; or d) any genuine access device, not in the name of the
possessor.
A card holder who abandons or surreptitiously leaves the place of employment,
business or residence stated in his application for credit card, without informing the
credit card company of the place where he could actually be found, if at the time of
such abandonment or surreptitious leaving, the outstanding and unpaid balance is past
due for at least ninety (90) days and is more than ten thousand pesos (P10,000.00),
shall be prima facie presumed to have used his credit card with intent to defraud.

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At first glance, the above presumptions, when applied in real cases, may suffer
from constitutional infirmities. The constitution provides that a person shall not be held
to answer to a criminal offense without due process of law. it may be argued that such
presumptions are rebuttable ones. However, the danger lies in the shifting of the
burden of proof from the prosecution to the defense.
The law provides for sixteen (16) prohibited acts which refer to the production,
use, possession of or trafficking in unauthorized or counterfeit access devices. It also
includes acts deemed fraudulent that increase the amount involved in commercial
transactions using access devices. Obtaining money or anything of value through the
use of an access device with intent to defraud or gain, and fleeing thereafter.
In the final analysis, the law basically seeks to address the issue of fraud in the
issuance and use of access devices, especially credit cards. Fraud may be committed by
the issuer by making false or vague information in the application or solicitation to open
credit card accounts. The applicant or holder, on the other hand, fraudulently
misrepresents himself by giving wrong identity, false profession or employment, or
bloated income.
Take the case for instance of Citibank v. Gatchalian (GR No. 111222, January
18, 1995) which shows how credit card applicants through false representation were
able to amass in simple terms P790,000.00 from petitioner.
In this case, two employees of the Asian-Pacific Broadcasting Co,. Inc. (ABCI)
applied for nineteen (19( credit cards with Citibank using different names other than
their real names. The Citibank approved the applications and the credit cards were
delivered to them for use. However, this case involves an illegal dismissal case where a
Citibank employee was found guilty of gross negligence for effecting the delivery of the
credit cards. Her dismissal was affirmed in this case.
Insofar as access device issuers are concerned, Eermitano v. C.A., may be a
case in point. The credit card holder lost his credit card which he immediately reported
to the card issuer. The contract stipulated that in case of lost, the same should be
reported immediately, otherwise purchases made shall be charged to the holder. In this
case, despite the prompt reporting of the holder, the issuer still charged the purchases
against the former. The Court in this case held the issuer in breach of the contract.
The penalties provided for by RA 8484 are imprisonment and fine. Imprisonment
is from six (6) years to ten (10) years and fine ranges from ten thousand pesos
(10,000.00) or twice the value of the offense, whichever is higher.
The penalties are increased in case the offender has a similar previous
conviction, meaning if he was previously found violating RA 8484. In which case, the
accused shall suffer imprisonment of not less than twelve (12) years and not more than
twenty (20) years.
The two other stages of felony, as defined by the Revised Penal Code is also
made punishable. Thus, attempted and frustrated are meted out with the penalties of
imprisonment and fine albeit only in fractions of the above penalties.
R.A. 8484 may seem to favor the issuer. A credit card company may only be
meted out the penalty of cancellation or suspension, which may be considered as mere
administrative sanctions. In fact, it is not the courts which impose such sanctions but
administrative agencies such as the Bangko Sentral and the Securities and Exchange
Commission.

84

On the other hand, a holder or mere possessor of a counterfeit fraudulently

applied for access device may be convicted and be made to suffer imprisonment and
fine.
JURISPRUDENCE:
Citibank v Gatchalian, (G.R. No. 111222, January 18, 1995)
It shows how credit card applicants through false representation were able to
amass in simple terms P790,000.00 from petitioner.
In this case, two employees of the Asian-Pacific Broadcasting Co., Inc. (ABCI)
applied for nineteen (19) credit cards with Citibank using different names other than
their real names. The Citbank approved the applications and the credit cards were
delivered to them for use. However, this case involves an illegal dismissal case where a
Citibank employee was found guilty of gross negligence for effecting the delivery of the
credit cards. Her dismissal was affirmed in this case.
Insofar as access device issuers are concerned, Eermitano v. CA, may be a case
in point. The credit card holder lost his credit card which he immediately reported to
the card issuer. The contract stipulated that in case of lost, the same should be
reported immediately, otherwise purchaser made shall be charged to the holder. In this
case, despite the prompt reporting of the holder, the issuer still charged the purchases
against the former. The Court in this case held that issuer in breach of the contract.

PD 704
THE PHILIPPINE FISHERIES CODE (R.A. 8550)
Objectives:
a.
b.
c.
d.
e.

Conservation, protection and sustained management of the countrys fishery and

aquatic resources.
Poverty alleviation and the provision of supplementary livelihood among
municipal fisherfolk;
Improvement of productivity of aquaculture within ecological limits;
Optimal utilization of offshore and deep-sea resources; and
Upgrading of post-harvest technology.

In Oposa v. Factora, Jr. the Court stated that the right to a balanced and
healthful ecology need not even be written in the Constitution for it is assumed, like
other civil and political rights guaranteed in the Bill of Rights, to exist from the
inception of mankind and it is an issue of transcendental importance with
intergeneration implications.
Even assuming the absence of a categorical legal
provision specifically prodding petitioners to clean up the bay, they and the men and
women representing them cannot escape their obligation to future generations of
Filipinos to keep the waters of the Manila Bay clean and clear humanly as possible.
Anything less would be a betrayal of the trust reposed in them.
PEOPLE vs. PRISCILLA BALASA, (GR No. 106357, September 3, 1998)

85

Where the accused committed qualified violation of PD704 (fishing with the use
of explosives), the imposable penalty for which is life imprisonment to death. If the
accused is entitled to a mitigating circumstance of voluntary surrender, the court should
impose life imprisonment applying, in a suppletory character, Article 13 and 63 of the
Revised Penal Code.
RP vs. CA (Sep. 30,1999, G.R. 122269)
land.

The trial court has no jurisdiction to make a disposition of inalienable public

PEOPLE OF THE PHILIPPINES VS. MACARAEN, G.R. No. L-32166 18 October

1977
However, at present, there is no more doubt that electro fishing is punishable
under the Fisheries Law and that it cannot be penalized merely by executive revolution
because Presidential Decree No. 704, which is revision and consolidation of all laws and
decrees affecting fishing and fisheries and which was promulgated on May 16, 1975 (71
O.G. 4269), expressly punishes electro fishing in fresh water and salt water areas.
That decree provides:
SEC. 33. Illegal fishing, dealing in illegally caught fish or fishery/aquatic
products. It shall he unlawful for any person to catch, take or gather or cause to be
caught, taken or gathered fish or fisheries/aquatic products in Philippine waters with
the use of explosives, obnoxious or poisonous substance, or by the use of electricity as
defined in paragraphs (1), (m) and (d), respectively, of Section 3 hereof:
The decree Act. No. 4003, as amended, Republic Acts Nos. 428, 3048, 3512 and
3586, Presidential Decrees Nos. 43, 534 and 533, and all, Acts, Executive Orders, rules
and regulations or parts thereof inconsistent with it (Sec. 49, P.D. No. 704).
The inclusion in that decree of provisions defining and penalizing electro fishing
is a clear recognition of the deficiency or silence on that point of the old Fisheries Law.
It is an admission that a mere executive regulation is not legally adequate to penalize
electro fishing.
Note that the definition of electro fishing, which is found in section 1(c) of
Fisheries Administrative Order No. 84 and which is not provided for the old Fisheries
Law, is now found in section 3(d) of the decree. Note further that the decree penalty
electro fishing by imprisonment from two (2) to four (4) years, a punishment which is
more severe that the penalty of a time of not excluding P500 or imprisonment of not
more than six months or both fixed in section 3 of Fisheries Administrative Order No.
84.

ILLEGAL RECRUITMENT
JURISPRUDENCE:
PEOPLE OF THE PHILIPPINES VS. HU, G.R. NO. 182232, OCTOBER 6,
2008

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Illegal recruitment is committed when two elements concur, namely: (1) the
offender has no valid license or authority required by law to enable him to lawfully
engage in the recruitment and placement of workers; and (2) he undertakes any
activity within the meaning of recruitment and placement defined under Article 13(b)
of the Labor Code. Recruitment and placement is any act of canvassing, enlisting,
contracting, transporting, utilizing, hiring or procuring workers; and includes referrals,
contact services, promising or advertising for employment, locally or abroad, whether
for profit or not: Provided, that any person or entity which, in any manner, offers or
promises for a fee employment to two or more persons shall be deemed engaged in
recruitment and placement.
The crime becomes Illegal Recruitment in Large Scale when the foregoing two
elements concur, with the addition of a third element the recruiter committed the
same against three or more persons, individually or as group.
A conviction for large scale illegal recruitment must be based on a finding in
each case of illegal recruitment of three or more persons whether individually or as a
group. While it is true that the law does not require that at least three victims testify at
the trial, nevertheless, it is necessary that there is sufficient evidence proving that the
offense was committed against three or more persons.
While there were six private complainants in this case, four of whom were
presented during the trial, the prosecution, nonetheless, failed to establish that Hu
engaged in illegal recruitment acts against at least three of these complainants. In
offenses in which the number of victims is essential, such as in the present petition,
failure of the prosecution to prove by convincing evidence that the offense is committed
against the minimum number of persons required by law is fatal to its cause of action.
Underscoring the significance of the number of victims was the disquisition of Justice
Florenz Regalado in People v. Ortiz-Miyake:
It is evident that in illegal recruitment cases, the number of persons
victimized is determinative. Where illegal recruitment is committed against a
lone victim, the accused may be convicted of simple illegal recruitment which
is punishable with a lower penalty under Article 39(c) of the Labor Code.
Corollarily, where the offense is committed against three or more persons, it is qualified
to illegal recruitment in large scale which provides a higher penalty under Article 39(a)
of the same Code. (Emphasis supplied.)
PEOPLE OF THE PHILIPPINES VS. LO, G.R. NO. 175229, JANUARY 29, 2009
In a litany of cases, we held that to constitute illegal recruitment in large scale three
(3) elements must concur: (a) the offender has no valid license or authority required by
law to enable him to lawfully engage in recruitment and placement of workers; (b) the
offender undertakes any of the activities within the meaning of "recruitment and
placement" under Art. 13, par. (b), of the Labor Code, or any of the prohibited practices
enumerated under Art. 34 of the same Code (now Sec. 6, RA 8042); and, (c) the
offender committed the same against three (3) or more persons, individually or as a
group.
PEOPLE OF THE PHILIPPINES VS. NOGRA, G.R. 170834, AUGUST 29, 2008
The defense of being a mere employee is not a shield against his conviction for large
scale illegal recruitment. In People v. Gasacao and People v. Sagayaga, the Court
reiterated the ruling in People v. Cabais, People v. Chowdury and People v. Corpuz that

87

an employee of a company or corporation engaged in illegal recruitment may be held

liable as principal by direct participation, together with its employer, if it is shown that
he actively and consciously participated in the recruitment process.
PEOPLE OF THE PHILIPPINES VS. LARRY DOMINGO, G.R. 181475, APRIL 7,
2009
That no receipt or document in which appellant acknowledged receipt of money for the
promised jobs was adduced in evidence does not free him of liability. For even if at the
time appellant was promising employment no cash was given to him, he is still
considered as having been engaged in recruitment activities, since Article 13(b) of the
Labor Code states that the act of recruitment may be for profit or not. It suffices that
appellant promised or offered employment for a fee to the complaining witnesses to
warrant his conviction for illegal recruitment.
LAPASARAN VS. PEOPLE OF THE PHILIPPINES, G.R. NO. 179907, FEBRUARY 12, 2009
It is well established in jurisprudence that a person may be convicted of both illegal
recruitment and estafa. The reason, therefore, is not hard to discern: illegal
recruitment is malum prohibitum, while estafa is malum in se. In the first, the criminal
intent of the accused is not necessary for conviction. In the second, such an intent is
imperative.

RA 9165 - SALE AND DISTRIBUTION

PEOPLE OF THE PHILIPPINES VS. DUMLAO, G.R. NO. 181599, AUGUST 20, 2008
The pertinent portion of Sec. 5, Art. II of Republic Act 9165 provides:
SEC. 5. Sale, Trading, Administration, Dispensation, Delivery,
Distribution and Transportation of Dangerous Drugs and/or Controlled
Precursors and Essential Chemicals. The penalty of life
imprisonment to death and a fine ranging from Five hundred
thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00)
shall be imposed upon any person, who, unless authorized by law,
shall sell, trade, administer, dispense, deliver, give away to another,
distribute, dispatch in transit or transport any dangerous drug,
including any and all species of opium poppy regardless of the
quantity and purity involved, or shall act as a broker in any of such
transactions.
xxxx
In the instant case, appellant is charged with selling shabu, which is a
dangerous drug. Section 3(ii), Art. I of Republic Act 9165 defines selling as any act
of giving away any dangerous drug and/or controlled precursor and essential chemical
whether for money or any other consideration.
To sustain a conviction under this provision, the prosecution needs to establish
sufficiently the identity of the buyer, seller, object and consideration; and, the delivery
of the thing sold and the payment thereof. What is material is proof that the transaction
or sale actually took place, coupled with the presentation in court of the substance
seized as evidence. The commission of the offense of illegal sale of dangerous drugs

88

requires merely the consummation of the selling transaction, which happens the
moment the buyer receives the drug from the seller. Settled is the rule that as long as
the police officer went through the operation as a buyer and his offer was accepted by
appellant and the dangerous drugs delivered to the former, the crime is considered
consummated by the delivery of the goods.

PEOPLE VS. DARISAN, G.R. NO. 176151, JANUARY 30, 2009

The following are the elements of illegal sale and illegal possession of dangerous
drugs:
In a prosecution for illegal sale of dangerous drugs, the following elements must
first be established: (1) proof that the transaction or sale took place and (2) the
presentation in court of the corpus delicti or the illicit drug as evidence. In a
prosecution for illegal possession of a dangerous drug, it must be shown that (1) the
accused was in possession of an item or an object identified to be a prohibited or
regulated drug, (2) such possession is not authorized by law, and (3) the accused was
freely and consciously aware of being in possession of the drug.
PEOPLE VS. CONCEPCION, G.R. NO. 178876, JUNE 27, 2008
Jurisprudence has firmly entrenched the following as elements in the crime of
illegal sale of prohibited drugs: (1) the accused sold and delivered a prohibited drug to
another, and (2) he knew that what he had sold and delivered was a dangerous drug.
These two elements were clearly established in this case. The records show that
appellants sold and delivered the shabu to the PDEA agent posing as a poseur-buyer.
The plastic sachets containing white crystalline substance, which were seized and were
found positive for methylamphetamine hydrochloride (shabu), a dangerous drug, were
identified and offered in evidence. There is also no question that appellants knew that
what they were selling and delivering was shabu, a dangerous drug.
Settled is the rule that the absence of a prior surveillance or test buy does not
affect the legality of the buy-bust operation. There is no textbook method of
conducting buy-bust operations. The Court has left to the discretion of police
authorities the selection of effective means to apprehend drug dealers. A prior
surveillance, much less a lengthy one, is not necessary especially where the police
operatives are accompanied by their informant during the entrapment. Flexibility is a
trait of good police work. In the instant case, the entrapment or buy-bust operation
was conducted without the necessity of any prior surveillance because the confidential
informant, who was previously tasked by the buy-bust team leader to order dangerous
drugs from appellant Alfredo Concepcion, accompanied the team to the person who was
peddling the dangerous drugs.
The failure of the PDEA operatives to record the boodle money will not render
the buy-bust operation illegal. The recording of marked money used in a buy-bust
operation is not one of the elements for the prosecution of sale of illegal drugs. The
recording or non-recording thereof in an official record will not necessarily lead to an
acquittal as long as the sale of the prohibited drug is adequately proven. In the case at
bar, PO2 Sistemio, the poseur buyer and PO2 Arojado testified as to how the shabu
subject of the case was seized from appellants. Settled is the rule that in the
prosecution for the sale of dangerous drugs, the absence of marked money does not

89

create a hiatus in the evidence for the prosecution as long as the sale of dangerous
drugs is adequately proven and the drug subject of the transaction is presented before
the court. Neither law nor jurisprudence requires the presentation of any money used
in the buy-bust operation. What is material to a prosecution for illegal sale of
dangerous drugs is the proof that the transaction or sale actually took place, coupled
with the presentation in court of the corpus delicti as evidence. The prosecution duly
established both in this case.

PEOPLE VS. LAGMAN, G.R. NO. 168695, DECEMBER 8, 2008

The essential elements of the crime of illegal possession of regulated drugs are
the following: 1) the actual possession of an item or object which is identified to be a
prohibited drug; (2) such possession is not authorized by law; and (3) the accused
freely or consciously possessed the said drug.
[Illegal possession of regulated drugs] is mala prohibita, and, as such, criminal
intent is not an essential element. However, the prosecution must prove that the
accused had the intent to possess (animus posidendi) the drugs. Possession, under
the law, includes not only actual possession, but also constructive possession. 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. 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.
(Emphasis and underscoring supplied)
The finding of illicit drugs and paraphernalia in a house or building owned or
occupied by a particular person raises the presumption of knowledge and possession
thereof which, standing alone, is sufficient to convict.

PEOPLE VS. DELA CRUZ, G.R. NO. 182348, NOVEMBER 28, 2008
The elements in illegal possession of dangerous drug are: (1) the accused is in
possession of an item or object which is identified to be a prohibited drug; (2) such
possession is not authorized by law; and (3) the accused freely and consciously
possessed the said drug. On the third element, we have held that the possession must
be with knowledge of the accused or that animus possidendi existed with the
possession or control of said articles. Considering that as to this knowledge, a persons
mental state of awareness of a fact is involved, we have ruled that:
Since courts cannot penetrate the mind of an accused and thereafter state its
perceptions with certainty, resort to other evidence is necessary. 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. Its existence may and usually must be inferred from the
attendant events in each particular case.
PEOPLE VS. MARTIN SIMON,

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The final query is whether or not the Indeterminate Sentence Law is applicable
to the case now before us. Apparently it does, since drug offenses are not included in
nor has appellant committed any act which would put him within the exceptions to said
law and the penalty to be imposed does not involve reclusion perpetua or death,
provided, of course that the penalty as ultimately resolved will exceed one year of
imprisonment.
The more important aspect, however, is how the indeterminate
sentence shall be ascertained. It is true that Section 1 of said law, after providing for
indeterminate sentence for an offense under the Revised Penal Code, states that if the
offense is punished by any other law, the court shall sentence the accused to an
indeterminate sentence, the maximum term of which shall not exceed the maximum
fixed by said law and he minimum shall not be less than the minimum term prescribed
by the same. We hold that this quoted portion of the section indubitably refers to an
offense under a special law wherein the penalty imposed was not taken from and is
without reference to the Revised Penal Code as discussed in the preceding illustrations,
such that it may be said that the offense is punished under that law. There can be no
sensible debate that the aforequoted rule on indeterminate sentence for offenses under
special laws was necessary because of the nature of the former type of penalties under
said laws which were not included or contemplated in the scale of penalties in Article 71
of the Code, hence there could be no minimum within the range of he penalty next
lower to that prescribed by the Code for the offense, as is the rule for felonies therein.
In the illustrative examples of penalties in special laws hereinbefore provided, this rule
applied, and would still apply, only to the first and last examples. Futhermore,
considering the vintage of Act. 4103 as earlier noted, this holding is but an application
and is justified under the rule of contemporanea exposition. Republic Act No. 6425, as
now amended by Republic Act No. 7569, has unqualifiedly adopted the penalties under
the Revised Penal Code in their technical signification and effects. In fact, for purposes
of determining the maximum of said sentence, we have applied the provisions of he
amended Section 20 of said law to arrive at prision correctional and Article 64 of the
Code to impose the same in the medium period. Such offense, although provided for in
a special law, is now in the effect punished by and under the Revised Code.

CULTIVATION
JURISPRUDENCE:
PEOPLE OF THE PHILIPPINES
September 3, 2008

VS.

RICARDO

ALUNDAY,

G.R.

181546,

A perusal of Section 9, Art. II of R.A. No. 6425 shows that a violation exists
when a person shall cultivate, plant or culture on any medium Indian hemp, opium
poppy (papaver somniferum) or any other plant which may hereafter be classified as
dangerous drug. Indeed, ownership of the land where the marijuana seedlings are
planted, cultivated and cultured is not a requisite of the offense.
CHAIN OF CUSTODY
PEOPLE OF THE PHILIPPINES VS. OBMIRANIS, G.R. NO. 181492, DECEMBER 16, 2008
In criminal prosecutions, fundamental is the requirement that the elemental acts
constituting the offense be established with moral certainty as this is the critical and
only requisite to a finding of guilt. In prosecutions involving narcotics, the narcotic
substance itself constitutes the corpus delicti of the offense and the fact of its existence
is vital to sustain a judgment of conviction beyond reasonable doubt. It is therefore of

91

prime importance that in these cases, the identity of the dangerous drug be likewise
established beyond reasonable doubt. In other words, it must be established with
unwavering exactitude that the dangerous drug presented in court as evidence against
the accused is the same as that seized from him in the first place. The chain of custody
requirement performs this function in that it ensures that unnecessary doubts
concerning the identity of the evidence are removed.

PEOPLE OF THE PHILIPPINES VS. ROSALES, G.R. NO. 177220, APRIL 24, 2009
In a prosecution for illegal sale of dangerous drugs, the following elements must
be established: (1) proof that the transaction or sale took place; and (2) presentation
in court of the corpus delicti or the illicit drug as evidence. The existence of dangerous
drugs is a condition sine qua non for conviction for the illegal sale of dangerous drugs,
it being the very corpus delicti of the crime. Central to this requirement is the question
of whether the drug submitted for laboratory examination and presented in court was
actually recovered from appellant. Hence, the Court has adopted the chain of custody
rule.
As a method of authenticating evidence, the chain of custody rule requires that
the admission of an exhibit be preceded by evidence sufficient to support a finding that
the matter in question is what the proponent claims it to be. It would include
testimony about every link in the chain, from the moment the item was picked up to
the time it is offered into evidence, in such a way that every person who touched the
exhibit would describe how and from whom it was received, where it was and what
happened to it while in the witness possession, the condition in which it was received
and the condition in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that there had been no
change in the condition of the item and no opportunity for someone not in the chain to
have possession of the same. (Underscoring supplied)

PEOPLE OF THE PHILIPPINES VS. RUIZ GARCIA, G.R. NO. 173480, FEBRUARY
25, 2009
A buy-bust operation gave rise to the present case. While this kind of operation
has been proven to be an effective way to flush out illegal transactions that are
otherwise conducted covertly and in secrecy, a buy-bust operation has a significant
downside that has not escaped the attention of the framers of the law. It is susceptible
to police abuse, the most notorious of which is its use as a tool for extortion. In People
v. Tan, this Court itself recognized that by the very nature of anti-narcotics
operations, the need for entrapment procedures, the use of shady characters as
informants, the ease with which sticks of marijuana or grams of heroin can be planted
in pockets of or hands of unsuspecting provincial hicks, and the secrecy that inevitably
shrouds all drug deals, the possibility of abuse is great. Thus, courts have been
exhorted to be extra vigilant in trying drug cases lest an innocent person is made to
suffer the unusually severe penalties for drug offenses. Accordingly, specific
procedures relating to the seizure and custody of drugs have been laid down in the law
(R.A. No. 9165) for the police to strictly follow. The prosecution must adduce evidence
that these procedures have been followed in proving the elements of the defined
offense.

92

The chain of custody requirement is essential to ensure that doubts regarding

the identity of the evidence are removed through the monitoring and tracking of the
movements of the seized drugs from the accused, to the police, to the forensic chemist,
and finally to the court. It is important enough as a concern that Section 1(b) of
Dangerous Drugs Board Regulation No. 1, Series of 2002 (which implements R.A. No.
9165) specifically defines chain of custody.
Chain of Custody means the duly recorded authorized movements and
custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or
laboratory equipment of each stage, from the time of seizure/confiscation to
receipt in the forensic laboratory to safekeeping to presentation in court for
destruction. Such record of movements and custody of seized item shall include the
identity and signature of the person who held temporary custody of the seized item,
the date and time when such transfer of custody were made in the course of
safekeeping and used in court as evidence, and the final disposition.

PEOPLE VS. MAGAT, G.R. NO. 179939, SEPTEMBER 29, 2008

R.A. No. 9165 had placed upon the law enforcers the duty to establish the chain
of custody of the seized drugs to ensure the integrity of the corpus delicti. Thru proper
exhibit handling, storage, labeling and recording, the identity of the seized drugs is
insulated from doubt from their confiscation up to their presentation in court.

CA 142: AN ACT REGULATING THE USE OF ALIASES

PEOPLE VS. JOSEPH EJERCITO ESTRADA, ET. AL., G.R. NO. 164368-69, APRIL
2, 2009
A name or names used by a person or intended to be used by him publicly and
habitually usually in business transactions in addition to his real name by which he is
registered at birth or baptized the first time or substitute name authorized by a
competent authority. There must be, in the words of Ursua, a sign or indication that
the user intends to be known by this name (the alias) in addition to his real name from
that day forth [for the use of alias to] fall within the prohibition contained in C.A.
No. 142 as amended.

PD 705:
THE FORESTRY CODE OF THE PHILIPPINES
JURISPRUDENCE:
OLYMPIO REVALDO VS. PEOPLE, G.R. NO. 170589, APRIL 16, 2009

93

There are two distinct and separate offenses punished under Section 68 of the
Forestry Code, to wit:
(1)

Cutting, gathering, collecting and removing timber or other forest products

from any forest land, or timber from alienable or disposable public land, or
from private land without any authority; and

(2)

Possession of timber or other forest products without the legal documents

required under existing forest laws and regulations.

As the Court held in People v. Que, in the first offense, one can raise as a
defense the legality of the acts of cutting, gathering, collecting, or removing timber or
other forest products by presenting the authorization issued by the DENR. In the
second offense, however, it is immaterial whether the cutting, gathering, collecting and
removal of the forest products are legal or not. Mere possession of forest products
without the proper documents consummates the crime. Whether or not the lumber
comes from a legal source is immaterial because the Forestry Code is a special law
which considers mere possession of timber or other forest products without the proper
documentation as malum prohibitum.

REVISING PRESIDENTIAL DECREE NO. 389, OTHERWISE KNOWN AS THE

FORESTRY REFORM CODE OF THE PHILIPPINES:
-

Cutting of timber in private land and turning to lumber in private land is a Violation of
Forestry Code.
JURISPRUDENCE:
Sesinado Merida, vs. People of the Philippines, G.R. No. 158182, June 12, 2008
The petitioner was charged with cutting trees and converting the same to
lumber on private land, as violation to the forestry code.
A violation as made under the forestry code, if the specie of tree is listed on the
prohibited subject of the code, then, cutting these prohibited trees from a private land
then converting it to lumber is a violation of the law. Clearly, no construction is needed
when the words of the law is unambiguous and there is indication as regards a contrary
legislative intent.
Amado Taopa, vs. People of the Philippines, G.R. No. 184098, November 25,
2008
Section 68 of PD 705, as amended, refers to Articles 309 and 310 of the
Revised Penal Code (RPC) for the penalties to be imposed on violators. Violation of
Section 68 of PD 705, as amended, is punished as qualified theft. The law treats
cutting, gathering collecting and possessing timber of other forest products without
license as an offense as grave as and equivalent to the felony of qualified theft.
Galo Monge, vs. People of the Philippines, G.R. No. 170308 March 7, 2008
Section 68 of PD 705, as amended by E.O. No. 277, criminalizes two distinct and
separate offenses, namely: (a) the cutting, gathering, collecting and removing of

94

timber or other forest products from any forest land, or timber from alienable or
disposable public land, or from private land without any authority; and (b) the
possession of timber or other forest products without the legal documents required
under existing laws and regulations. DENR Administrative Order No. 59 series of 1993
specifies the documents required for the transport of timber and other forest products.
Section 3 thereof materially requires for the transport of lumber be accompanied by a
certificate of lumber origin duly issued by the DENR-CENRO. In the first offense, the
legality of the acts of cutting, gathering, collecting or removing timber or other forest
products may be proven by the authorization duly issued by the DENR. In the second
offense, however, it is immaterial whether or not the cutting gathering, collecting and
removal of forest products are legal precisely because mere possession of forest
products without the requisite documents consummates the crime.
It is thus clear that the fact of possession by petitioner and Potencio of the
subject mahogany lumber and their subsequent failure to produce the requisite legal
documents, taken together, has already given rise to criminal liability under Section 69
of PD No. 705, particularly second act punished thereunder.

THE CRIME OF LAUNDERING

(REPUBLIC ACT NO. 9160)
Purpose:
It is hereby declared the policy of the State to protect and preserve the
integrity and confidentiality of bank accounts and to ensure that the Philippines shall
not be used as a money laundering sit for the proceeds of any unlawful activity.
Consistent with its foreign policy, the State shall extend cooperation in transnational
investigations and prosecutions of persons involved in money laundering activities
wherever committed.
The Anti-Money Laundering Council
A. POWERS AND DUTIES
a) To require and receive covered or suspicious transaction reports from covered
institutions;
b) To issue orders addressed to the appropriate Supervising Authority or the covered
institutions to determine the true identity of the owner of any monetary
instrument or property subject of a covered transaction or suspicious transaction
report or request for assistance from a foreign State, or believed by the Council,
on the basis of substantial evidence, to be, in whole or in part, wherever located,
representing, involving, or related to directly or indirectly, in any manner or by
any means, the proceeds of an unlawful activity.
c) To institute civil forfeiture proceedings and all other remedial proceedings through
the Office of th Solicitor General;
d) To cause the filing of complaints with the Department of Justice or the
Ombudsman for the prosecution of money laundering offenses;

95

e)

To investigate suspicious transactions and covered transactions deemed

suspicious after an investigation by AMLC, money laundering activities and other
violations of this Act;

f) To apply before the Court of Appeals, ex parte, for the freezing of any monetary
instrument or property alleged to be the proceeds of any unlawful activity as
defined in Section 3(i) hereof;
g)

To implement such measures as may be necessary and justified under this Act to
counteract money laundering;

h) To receive and take action in respect of, any request from foreign states for
assistance in their own anti-money laundering operations provided in this Act;
i)

To develop educational programs on the pernicious effects of money laundering,

the methods and techniques used in the money laundering, the viable means of
preventing money laundering and the effective ways of prosecuting and punishing
offenders;

j)

To enlist the assistance of any branch, department, bureau, office, agency, or

instrumentality of the government, including government-owned and -controlled
corporations, in undertaking any and all anti-money laundering operations, which
may include the use of its personnel, facilities and resources for the more
resolute prevention, detection, and investigation of money laundering offenses
and prosecution of offenders; and

k) To impose administrative sanctions for the violation of laws, rules, regulations,

and orders and resolutions issued pursuant thereto. (Sec. 7, RA 9160, as
amended by RA 9194)
COMPOSITION OF AMLC
A. Governor of the Banko Sentral ng Pilipinas as Chairman
B. Commissioner of the Insurance Commission as Member
C. Chairman of the Securities and Exchange Commission as Member (Sec. 7, RA
9160, as amended by RA 9194)
JURISDICTIONS OF MONEY LAUNDERING CASES.
The regional trial courts shall have jurisdiction to try all cases on money
laundering. Those committed by public officers and private persons who are in
conspiracy with such public officers shall be under the jurisdiction of the
Sandiganbayan. (Sec. 5, RA 9160)
FREEZING OF MONETARY INSTRUMENT OR PROPERTY
The Court of Appeals, upon application ex parte by the AMLC and after
determination that probable cause exists that any monetary instrument or property is
in any way related to an unlawful activity as defined in Section 3(i) hereof, may issue a
freeze order which shall be effective immediately. The freeze order shall be for a period
of twenty (20) days unless extended by the court. (Sec. 10 of RA 9160, as amended by
RA 9194)

96

AUTHORITY TO INQUIRE INTO BANK DEPOSITS

Notwithstanding the provisions of Republic Act No. 1405, as amended, Republic
Act No. 6426, as amended, Republic Act No. 8791, and other laws, the AMLC may
inquire into or examine any particular deposit or investment with any banking
institution or non-bank financial institution upon order of any competent court in cases
of violation of this Act, when it has been established that there is probable cause that
the deposits or investments are related to an unlawful activities as defined in Section
3(I) hereof or a money laundering offense under Section 4 hereof, except that no court
order shall be required in cases involving unlawful activities defined in Sections 3(I)1,
(2) and (12).
To ensure compliance with this Act, the Bangko Sentral ng Pilipinas (BSP) may
inquire into or examine any deposit of investment with any banking institution or nonbank financial institution when the examination is made in the course of a periodic or
special examination, in accordance with the rules of examination of the BSP. (Sec. 11
of RA 9160, as amended by RA 9194)
JURISPRUDENCE:
In the case of People vs. Estrada (G.R. No. 164368, April 2, 2009) as
regards the use of an alias, the Supreme Court held that the repeated use of an alias
within a single day cannot be deemed habitual, as it does not amooffiunt to a
customary practice or use.
In the case of Anti-Money Laundering Council (AMLC) vs. Hon. Eugenio,
the court held that: In addition to providing for the definition and penalties for the
crime of money laundering, the AMLA also authorizes certain provisional remedies that
would aid the AMLC in the enforcement of the AMLA. These are the freeze order
authorized under Sec. 10, and the bank inquiry order authorized under Section 11.
xxx Still, even if the bank inquiry order may be availed of without need of a preexisting case under the AMLA, it does not follow that such order may be availed for ex
parte. There are several reasons why the AMLA does not generally sanction ex parte
applications and issuance of the bank inquiry order.

REPUBLIC ACT 9160

ANTI-MONEY LAUNDERING ACT, AS AMENDED BY REPUBLIC ACT 9194

DEFINITION OF TERMS
(a) "Covered Institution" refers to:
(1)

Banks, non-banks, quasi-banks, trust entities, and all other

institutions and their subsidiaries and affiliates supervised or
regulated by the Bangko Sentral ng Pilipinas (BSP);

(2) Insurance companies and all other institutions supervised or

regulated by the Insurance Commission; and

97

(3) Securities dealers, brokers, salesmen, investment houses and other

similar entities managing securities or rendering services as
investment agent, advisor, or consultant, (ii) mutual funds, close and
investment companies, common trust funds, pre-need companies and
other similar entities, (iii) foreign exchange corporations, money
changers, money payment, remittance, and transfer companies and
other similar entities, and (iv) other entities administering or
otherwise dealing in currency, commodities or financial derivatives
based thereon, valuable objects, cash substitutes and other similar
monetary instruments or property supervised or regulated by
Securities and Exchange Commission.(Sec. 3-a, RA 9160)
(b) Covered Transaction is a transaction in cash or other equivalent monetary
instrument involving a total amount in excess of Five Hundred Thousand Pesos (Php
500,000.00) within one banking day. (Sec. 3(b) of RA 9160, as amended by RA 9194)
(c) Suspicious Transaction are transactions with covered institutions, regardless of
the amounts involved, where any of the following circumstances exist:
1. There is no underlying legal or trade obligation, purpose or economic
justification;
2. The client is not properly identified;
3. The amount involved is not commensurate with the business or financial
capacity of the client;
4. Taking into account all known circumstances, it may be perceived that the
clients transaction is structured in order to avoid being the subject of
5. reporting requirements under the Act;
6. Any circumstances relating to the transaction which is observed to
deviate from the profile of the client and/or the clients past transactions
with the covered institution;
7. The transactions is in any way related to an unlawful activity or offense
under this Act that is about to be, is being or has been committed; or
8. Any transactions that is similar or analogous to any of the foregoing.
(Sec. b-1, RA 9160 as amended by RA 9194)
(d) Unlawful activity - refers to any act or omission or series or combination thereof
involving or having direct relation to following:
(1) Kidnapping for ransom under Article 267 of Act No. 3815, otherwise
known as the Revised Penal Code, as amended;
(2) Sections 4, 5, 6, 8, 9, 10, 12, 13, 14, 15, and 16 of Republic Act No.
9165, otherwise known as the Comprehensive Dangerous Act of 2002;
(3) Section 3 paragraphs B, C, E, G, H and I of republic Act No. 3019, as
amended, otherwise known as the Anti-Graft and Corrupt Practices Act;

98

(4) Plunder under Republic Act No. 7080, as amended;

(5) Robbery and extortion under Articles 294, 295, 296, 299, 300, 301
and 302 of the Revised Penal Code, as amended;
(6) Jueteng and Masiao punished as illegal gambling under Presidential
Decree No. 1602;
(7) Piracy on the high seas under the Revised Penal Code, as amended
and Presidential under the Revised Penal Code, as amended and
Presidential Decree No. 532;
(8) Qualified theft under Article 310 of the Revised penal Code, as
amended;
(9) Swindling under Article 315 of the Revised Penal Code, as amended;
(10) Smuggling under Republic Act Nos. 455 and 1937;
(11) Violations under Republic Act No. 8792, otherwise known as the
Electronic Commerce Act of 2000;
(12) Hijacking and other violations under Republic Act No. 6235;
destructive arson and murder, as defined under the Revised Penal Code,
as amended, including those perpetrated by terrorists against noncombatant persons and similar targets;
(13) Fraudulent practices and other violations under Republic Act No.
8799, otherwise known as the Securities Regulation Code of 2000;
(14) Felonies or offenses of a similar nature that are punishable under the
penal laws of other countries. (Sec. I of RA 9160, as amended by RA
9194)
(e) Money Laundering Offense. -- Money laundering is a crime whereby the
proceeds of an unlawful activity as herein defined are transacted, theeby making them
appear to have originated from legitimate sources. It is committed by the following:
(a) Any person knowing that any monetary instrument or property
represents, involves, or relates to, the proceeds of any unlawful activity,
transacts or attempts to transact said monetary instrument or property.
(b) Any person knowing that any monetary instrument or property
involves the proceeds of any unlawful activit, performs or fails to perform
any act as a result of which he facilitates the offense of money laundering
referred to in paragraph (a) above.
(c) Any person knowing that any monetary instrument or property is
required under this Act to be disclosed and filed with the Anti-Money
Laundering Council (AMLC), fails to do so." (Sec. 4 of RA 9160, as amended
by RA 9194)

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P.D. 533 OR ANTI-CATTLE RUSTLING LAW

Definition
Cattle-rustling is the taking away by any means, method or scheme, without the
consent of the owner or raiser, of any cow, carabao, horse, mule, ass or other
domesticated member of the bovine family, whether or not for profit or gain, or
whether committed with or without violence against or intimidation of any person or
force upon things; and it includes the killing of large cattle, or taking its meat or hide
without the consent of the owner or raiser. (Pil-Ey vs. People, G.R. No. 154941, July 9,
2007)
Violation of Anti-Cattle Rustling Law; Elements
1.
2.
3.
4.
5.
6.

Large cattle is taken

It belongs to another
The taking is done without the consent of the owner or raiser
The taking is done by any means, method or scheme
The taking is done with or without intent to gain
The taking is accomplished with or without violence or intimidation against person
or force upon things. (Pil-Ey vs. People, G.R. No. 154941, July 9, 2007)

DEEMED AS AN AMENDMENT OF THE REVISED PENAL CODE

However, as we have declared in Canta, the computation of the penalty should be in
accordance with our discussion in People v. Macatanda (195 SCRA 604), which we
quote herein for emphasis, thus:
We do not agree with the Solicitor General that P.D. No. 533 is a special law,
entirely distinct from and unrelated to the Revised Penal Code. From the nature of the
penalty imposed which is in terms of the classification and duration of penalties as
prescribed in the Revised Penal Code, which is not for penalties as are ordinarily
imposed in special laws, the intent seems clear that P.D. 533 shall be deemed as an
amendment of the Revised Penal Code, with respect to the offense of theft of large
cattle (Art. 310), or otherwise to be subject to applicable provisions thereof such as
Article 104 of the Revised Penal Code on civil liability of the offender, a provision which
is not found in the decree, but which could not have been intended to be discarded or
eliminated by the decree. Article 64 of the same Code should, likewise, be applicable x
x x.
Hence, in the instant case, considering that neither aggravating nor mitigating
circumstance attended the commission of the crime, the penalty to be imposed should
be within the range of prision correccional in its maximum period to prision mayor in its
medium period, as minimum, to reclusion temporal in its minimum period, as
maximum. We, thus, modify the minimum penalty imposed by the trial court to be four
(4) years, two (2) months and one (1) day of prision correccional. (Pil-Ey vs. People,
G.R. No. 154941, July 9, 2007)

R.A. 7080: AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER

JURISPRUDENCE:

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In the case of DEPAKAKIBO GARCIA vs. SANDIGANBAYAN and REPUBLIC it was

held by the Supreme Court that The action of forfeiture arises when a public officer or
employee [acquires] during his incumbency an amount of property which is manifestly
out of proportion of his salary x x x and to his other lawful income x x x. Such amount
of property is then presumed prima facie to have been unlawfully acquired. Thus, if
the respondent [public official] is unable to show to the satisfaction of he court hat he
has lawfully acquired the property in question, then the court shall declare such
property forfeited in favor of the State, and by virtue of such judgment the property
aforesaid shall become property forfeited in favor of the Stat.
FRATERNITIES, SORORITIES, AND ORGANIZATIONS AND PROVIDING
PENALTIES THEREFORE.
REPUBLIC ACT NO. 8049.
Purpose:
Its purpose is to prevent the increasing number of deaths due to hazing and
other forms of initiation rites.
CONDITIONS OF A LEGAL HAZING OR INTITIATION RITES:
No hazing or initiation rites in any form or manner by a fraternity, sorority or
organization seven (7) days before the conduct of such initiations. The written notice
shall indicate the period of the initiation activities which shall not exceed three (3)
days, shall include the names of those to be subjected to such activities, and shall
further contain an undertaking that no physical violence be employed by anybody
during such initiation rites.
DECREE PENALIZING OBSTRUCTION OF APPREHENSION AND
PROSECUTION OF CRIMINAL OFFENSES (P.D. 1829)
Purpose:
As stated in the law, its purpose is to discourage public indifference or apathy
towards the apprehension and prosecution of criminal offenders, it is necessary to
penalize acts which obstruct or frustrate or tend to obstruct or frustrate the successful
apprehension and prosecution of criminal offenders.
Agpalo Legal Ethics, UP Law Center, 1980 Edition. Pp.405-406)
Acts which amount to obstruction in the administration of justice may take many
forms. They include such acts as instructing a complaining witness in a criminal action
not to appear at the scheduled hearing so that the case against the client, the accused,
would be dismissed. (Cantorne vs. Ducasin supra) asking a client to plead guilty to a
crime which the lawyer knows his client did not commit, (Nueno v. Santos, 58 Phil. 557
[1933]) advising a client who is detained for a crime to escape from prison, (Cf. Medina
v. Yan, G.R. No. 30978, Sept. 30, 1974), employing dilatory tactics to frustrate
satisfaction of clearly valid claims, Pajares vs. Abad Santos, G.R. No. 29543, Nove. 20,
1969, 30 SCRA 748) prosecuting clearly frivolous cases as appeals to drain the
resources of the other party and compel him to submit out of exhaustion (Samar
Mining Co. vs. Arnado, GR No. 22304, July 30, 1968) and finding multiple petitions or
complaints for cause that has been previously rejected in the false expectation of
getting favorable action. (Gabriel vs. Court of Appeals, G.R. No. 43757, July 30, 1976,

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72 SCRA 173; Ramos vs. Potenciano, G.R. No. 27104, Dec. 20, 1976, 74 SCRA 345;
Macias v. Uy Kim, G.R. No. 31174, May 30, 1972, 45 SCRA 251) Acts of this or similar
nature are grounds for disciplinary action.
JURISPRUDENCE:
Posadas vs. Ombudsman, (GR No. 131492, 29 September 2000)
In this case, certain officials of the University of the Philippines (UP) were
charged for violating PD 1829. The UP officers objected to the warrantless arrest of
certain students by the National Bureau of Investigation (NBI). According to the
Supreme Court, the police had no ground for the warrantless arrest. The UP Officers,
therefore, had a right to prevent the arrest of the students at the time because their
attempted arrest was illegal. The need to enforce the law cannot be justified by
sacrificing constitutional rights.
Enrile vs. Hon. Amin, (G.R. No. 93335, Sept. 13, 1990)
In this case, Sen. Juan Ponce Enrile was charged under PD 1829, for allegedly
accommodating Col. Gregorio Honasan by giving him food and comfort on 1 December
1989 in his house. Knowing that Colonel Honasan is a fugitive from justice, Sen.
Enrile allegedly did not do anything to have Honasan arrested or apprehended. The
Supreme Court ruled that Sen. Enrile could not be separately charged under PD 1829,
as this is absorbed in the charge of rebellion already filed against Sen. Enrile.
RA NO. 6539:
AN ACT PREVENTING AND PENALIZING CARNAPPING
A card holder who abandons or surreptitiously leaves the place of employment,
business or residence stated in his application for credit card, without informing the
credit card company of the place where he could actually be found, if at the time of
such abandonment or surreptitious leaving, the outstanding and unpaid balance is past
due for at least ninety (90) days and is more that ten thousand pesos (P10,000.00),
shall be prima facie presumed to have used his credit card with intent to defraud.
The law provides for sixteen (16) prohibited acts which refer to the production,
use, possession of or trafficking in unauthorized or counterfeit access devices. It also
includes acts deemed fraudulent that increase the amount involved in commercial
transactions using access devices. Obtaining money or anything of value through the
use of an access devise with intent to defraud or gain, and fleeing thereafter.
People of the Philippines, plaintiff-appellee, vs. Noel Santos y Crispino and
Feliciano Funcion alias JON-JON, accused, G.R. No. 127500, June 8, 2000.
Carnapping, as defined by Republic Act No. 6539, or the Anti-Carnapping Act, as
amended, is the taking, with intent to gain, of a motor vehicle belonging to another
without the latters consent, or by means of violence against or intimidation of persons,
by using force upon things. By the amendment in Section 20 of Republic Act No. 7659,
Section 14 of the Anti-Carnapping Act now makes clear, among others, the intention of
the law to make the offense a special complex crime, by or intimidation of persons.
Thus, under the last clause of Section 14 of he Anti-Carnapping Act, the prosecution
not only has to prove the essential requisites of carnapping and of the homicide or
murder of Ruel Morales but more importantly, it must show that the original criminal

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design of he culprit was carnapping and that the killing was perpetrated in the course
of the commission of the carnapping or on the occasion thereof. Needless to say,
where the elements of carnapping are not proved, the provisions of the Anti Carnapping
Act would cease to be applicable and the homicide or murder (if proven) would be
punishable under the Revised Penal Code.
People of the Philippines, appellee, vs. Elgin Latayada, (at large), appellant, G.R.
No. 146865. February 18, 2004.
Under Section 2 of RA 6539, carnapping is the taking, with intent to gain, of a
motor vehicle belonging to another without the latters consent; or by means of
violence against or intimidation of persons; or with the use of force upon things . . . RA
7659 introduced three amendments to the last clause of Section 14: (1) the change of
the penalty from life imprisonment to reclusion perpetua, (2) the inclusion of rape, and
(3) the change of the phrase in the commission of the carnapping to in the course of
the commission of the carnapping or on the occasion thereof. The Court has held that
the third that the third amendment clarifies the intention of the law to make the offense
a special complex crime, in the third amendment clarifies the intention of the law to
make the offense a special complex crime, in the same way, that robbery with violence
against or intimidation of persons is treated under paragraphs 1 to 4 Article 294 of the
Revised Penal Code (RPC). Hence, the prosecution must prove not only that the
essential requisites of carnapping were present; but also that it was the original
criminal design of the culprit, and that the killing was perpetrated in the course of the
commission of the carnapping or on the occasion thereof. In the present case, the
prosecution had the burden of proving that 1) appellant took the motorcycle; 2) his
original criminal design was carnapping; 3) he killed Payla; and 4) the killing was
perpetrated in the course of the commission of the carnapping or on the occasion
thereof. It is indisputed that the motorcycle driven by Payla had been taken without
his consent on October 29, 1995, and recovered days later in a cannibalized condition.
The elements of taking and intent to gain were thus established. The prosecution also
proved it was appellant who had killed him. It failed, however, to discharge its burden
of proving the two other requisites of carnapping.
People of the Philippines, plaintiff-appelee vs. Gregorion Mejia y Villafania,
Edwin Benito, Pedro Paraan, and Joseph Fabito, accused-appellants, G.R. Nos.
118940-41 & 119407. July 7, 1997
R.A. No. 7659 which took effect on 31 December 1993 is applicable to these
cases because the crimes were committed on 10 March 1994. Section 14 of the AntiCarnapping Act was amended by Section 20 of RA No. 7659 and now imposes the
penalty of reclusion perpetua to death when the owner, driver, or occupant of the
carnapped motor vehicle is killed or raped in the course of the commission of the
carnapping or on the occasion thereof. Three amendments have this been made, viz:
(1) the change of the penalty of life imprisonment to reclusion perpetua, (2) the
inclusion of rape, and (3) the change of the phrase in te commission of the
carnapping to in the course of the commission of the carnapping or on the occasion
thereof. The latter makes clear the intention of the law to make the offense a special
complex crime, by way of analogy vis--vis paragraphs 1 to 4 of Article 294 of the
Revised Penal Code on robbery with violence against or intimidation of persons. As
such, the killing (or the rape) merely qualifies the crime of carnapping in an aggravated
from. In short, considering the phraseology of the amended Section 14, the carnapping
and the killing (or the rape) may be considered as a single or indivisible crime or a
special complex crime which, however, is not covered by Article 48 of the Revised Penal
Code.

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People of the Philippines, appellee, vs. Luisito D. Bustinera, appellant.

Intent to gain or animus lucrandi is an internal act, presumed from unlawful
taking of the motor vehicle. Actual gain is irrelevant as the important consideration is
the intent to gain. The term gain is not merely limited to pecuniary benefit but also
includes the benefit which in any other sense may be derived or expected from the act
which is performed. Thus, the mere use of the thing which was taken without the
owners consent constitutes gain.
In Villacorta v. Insurance Commission which was reiterated in Association of
Baptists for World Evangelism, Inc. v. Fielmens Insurance Co., Inc., Justice Claudio
Teehankee (later Chief Justice), interpreting the theft clause of an insurance policy,
explained that, when one takes the motor vehicle of another without the latters
consent even if the motor vehicle is later returned, there is theft, there being intent to
gain as the use of the thing unlawfully taken constitutes gain:
Assuming, despite the totally inadequate evidence, that the taking was
temporary and for joy ride, the Court sustains as the better view that which holds
that when a person, either with the object of going to certain place, a learning how to
drive, or enjoying a free ride, takes possession of a vehicle belonging to another,
without the consent of its owner, he is guilty of theft because by taking possession of
the personal property belonging to another and using it, his intent to gain is evident
since he derives therefrom utility, satisfaction, enjoyment and pleasure. Justice Ramon
C. Aquino cites in his work Groizard who holds that the use of a thing constitutes gain
and Cuello Calon who calls it hurt de uso. (underscoring supplied; citation omitted)
Lt. Gen. Alfonso P. Factoran, G.R. No. 101083, 30 July 1993
In the instant case, Edma did not resort to, or avail or, any administrative
remedy. He went straight to court and filed a complaint for replevin and damages.
Section 8 of Presidential Decree No. 705, as amended, states that (1) all actions and
decisions of the Bureau of Forest Development Director are subject to review by the
DENR Secretary, (2) the decisions of the DENR Secretary are appealable to the
President; and (3) courts cannot review the decisions of the DENR Secretary except
through a special civil action for certiorari or prohibition. In Dy, the Court held that all
actions seeking to recover forest products in the custody of the DENR shall be directed
to that agency not the courts.
Leonardo Paat, et. al. v. Court of Appeals, et al., G.R.
No. 111107, 10 January 1997)
the enforcement of forestry laws, rules and regulations and the protection,
development and management of forest lands fall within the primary and special
responsibilities of the Department of Environment and Natural Resources. By the very
nature of its function, the DENR should be given a free hand unperturbed by judicial
intrusion to determine a controversy which is well within its jurisdiction.
The
assumption by the trial court, therefore, of the replevin suit filed by private
respondents constitutes and unjustified encroachment into the domain of the
administrative agencys prerogative. The doctrine of primary jurisdiction does not
warrant a court to arrogate unto itself the authority to resolve a controversy the
jurisdiction over which is initially lodged with an administrative body of special
competence. Xxx.

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DANGEROUS DRUG ACT OF 2002

(Republic Acts No. 9165)
DEFINITIONS OF 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

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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 are the significant Provisions in R.A. 6425
that have been 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 are the new kinds of drugs
that are included in R.A. 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.

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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,

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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

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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 LIABILITY FOR
PLANTING OF 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:

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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 ARE THE PRIVILEGE NOT
AVAILABLE TO VIOLATOR OF THIS 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 pleabargaining.
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 of appeal suspend the right of the accused
- Rights to Self-incrimination do not refer to giving blood.
IMMUNITY FROM PROSECUTION
AND 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

110

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 OF THE
GRANT OF 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 WHO ARE SUBJECT
TO THE MANDATORY DRUG TESTING

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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 RECORDS UNDER
THE COMPULSARY SUBMISSION 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

112

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 DANGEROUS DRUGS BOARD AND
PHILIPPINE DRUG ENFORCEMENT AGENCY
The Dangerous Drug Board
A. 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

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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 nonchairman 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

national drug control strategy formulated by the
out a national drug campaign program which
enforcement, control and prevention campaign
concerned government agencies;

implementation of the
Board thereby carrying
shall include drug law
with the assistance of

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;

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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;

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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 drugrelated 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 INVESTIGATION
OF DANGEROUS DRUG 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)

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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 DISPOSITION OF CONFISCATED, SEIZED
AND/OR SURRENDERED DANGEROUS DRUGS, 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:

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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,

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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 OF SENTENCE OF
FIRST-TIME MINOR 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 FIRSTTIME 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 OF SENTENCE
FOR FIRST-TIME 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

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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:

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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 to notify the court of such order to transfer or reassign.
DELAY AND BUNGLING IN THE
PROSECUTION OF DRUG 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 TO BE KEPT BY THE
DEPARTMENT OF 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 OF A PERSON WHO VIUOLATES
THE CONFIDENTIALITY OF 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 OF A PARENTS, SPOUSE OR
GUARDIAN WHO REFUSE TO COOPERATE
WITH THE BOARD OR ANY 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.

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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 TO NECESSITY
OF A SEARCH WARRANT
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 ALIBI, FRAME UP IS EASY
TO FABRICATE, BUT DIFFICULT
TO 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)
BUY BUST OPERATION: PDEA NEED NOT BE INVOLVED THEREIN
Appellant would next argue that the evidence against him was obtained in violation of
Sections 21 and 86 of Republic Act No. 9165 because the buy-bust operation was made
without any involvement of the Philippine Drug Enforcement Agency (PDEA).
Prescinding therefrom, he concludes that the prosecutions evidence, both testimonial

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and documentary, was inadmissible having been procured in violation of his

constitutional right against illegal arrest.
The argument is specious.
Section 86 of Republic Act No. 9165 reads:
SEC. 86. Transfer, Absorption, and Integration of All Operating Units on Illegal
Drugs into the PDEA and Transitory Provisions. The Narcotics Group of the PNP, the
Narcotics Division of the NBI and the Customs Narcotics Interdiction Unit are hereby
abolished; however they shall continue with the performance of their task as detail
service with the PDEA, subject to screening, until such time that the organizational
structure of the Agency is fully operational and the number of graduates of the PDEA
Academy is sufficient to do the task themselves: Provided, That such personnel who are
affected shall have the option of either being integrated into the PDEA or remain with
their original mother agencies and shall, thereafter, be immediately reassigned to other
units therein by the head of such agencies. Such personnel who are transferred,
absorbed and integrated in the PDEA shall be extended appointments to positions
similar in rank, salary, and other emoluments and privileges granted to their respective
positions in their original mother agencies.
The transfer, absorption and integration of the different offices and units
provided for in this Section shall take effect within eighteen (18) months from the
effectivity of this Act: Provided, That personnel absorbed and on detail service shall be
given until five (5) years to finally decide to join the PDEA.
Nothing in this Act shall mean a diminution of the investigative powers of the
NBI and the PNP on all other crimes as provided for in their respective organic laws:
Provided, however, That when the investigation being conducted by the NBI, PNP or
any ad hoc anti-drug task force is found to be a violation of any of the provisions of this
Act, the PDEA shall be the lead agency. The NBI, PNP or any of the task force shall
immediately transfer the same to the PDEA: Provided, further, That the NBI, PNP and
the Bureau of Customs shall maintain close coordination with the PDEA on all drug
related matters.
Cursory read, the foregoing provision is silent as to the consequences of failure
on the part of the law enforcers to transfer drug-related cases to the PDEA, in the same
way that the Implementing Rules and Regulations (IRR) of Republic Act No. 9165 is
also silent on the matter. But by no stretch of imagination could this silence be
interpreted as a legislative intent to make an arrest without the participation of PDEA
illegal nor evidence obtained pursuant to such an arrest inadmissible.
(People vs. Sta. Maria, G.R. No. 171019, February 23, 2007)

POSEUR-BUYER, GENERALLY
NEED NOT TESTIFY
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)

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EFFECT OF LIMITATION UNDER

SECTION 19, ART. VII OF THE
CONSTITUTION ON GRANT OF 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 AS TO WHO SHOULD
BE CRIMINALLY 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 THERE IS A WAIVER
OF WARRANTLESS 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)

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WHEN USE OF MOTOR VEHICLE

IN DRUG CASES OR ANY OTHER
CASE IS NOT AGGRAVATING
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.

Consented warrantless search;

5.

Customs search;

6.

Stop and Frisk; and

7.

Exigent and Emergency Circumstances.

(People v. Menguin; GR 120915, Apr. 13, 98)

CASES WHEN SEARCH WITHOUT

A WARRANT WAS 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

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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

126

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, accusedappellant 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 accusedappellant 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

127

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 accused-appellant'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 be rejected, pursuant to
Article III, Sec. 3(2) of the Constitution.
(People v. Menguin)
WHEN VOLUNTARY SUBMISSION
TO SEARCH IS INAPPLICABLE
Aside from the inapplicability of the abovecited case, the act of herein accusedappellant 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 SEARCH IS NOT
ALLOWED AFTER
AN ARREST IS MADE
In the case of 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 OF TO TRANSPORT
IN DRUG 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,

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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 accused-appellants, 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 accusedappellants; 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.
x

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)
JURISPRUDENCE:
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)
TRENDS AND ISSUES IN CRIMINAL JURISPRUDENCE
HAND-OUT MATERIALS
(DANGEROUS DRUGS ACT-R.A. 9165)
Buy-Bust Operation, a form of entrapment; Decoy Solicitation

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A police officers act of soliciting drugs from the accused during a buy-bust
operation, or what is known as a decoy solicitation is not prohibited by law and does
not render invalid the buy-bust operations. The safe of contraband is a kind of offense
habitually committed, and the solicitation simply furnishes evidence of the criminals
course of conduct in People v. Sta. Maria, the Court clarified that a decoy solicitation
is not tantamount to inducement or instigation. (People v. Botanes, G.R. No. 179150,
June 17, 2008)
Method of Buy-Bust Operation
There is no textbook method of conducting buy-bust operations. The Court has
left to the discretion of police authorities the selection of effective means to apprehend
drug dealers. A prior surveillance, much less a lengthy one, is not necessary especially
where the police operatives are accompanied by their informant during the entrapment.
Flexibility is a trait of good police work. Xxx As to the absence of a pre-arranged signal,
same is not fatal to the cause of the prosecution. The employment of a pre-arranged
signal, or the lack of it, is not indispensable in a buy-bust operation. What determines
if there was, indeed, a sale of dangerous drugs is proof of the concurrence of all the
elements of the offense. (People v. Nicolas, G.R. No. 178876, June 27, 2008)
Absence of a Prior Surveillance or Test Buy
Settled is the rule that prior surveillance is not a prerequisite for the validity of
an entrapment operation especially so if the buy-bust learn is accompanied by the
informant. The police officers may decide that time is of the essence and dispense with
the need of prior surveillance.
The absence of a prior surveillance or test buy does not affect the legality of the
buy-bust operation. There is no textbook method of conducting buy-bust operations.
The Court has left to the discretion of police authorities the selection of effective means
to apprehend drug dealers. Furthermore, if a police operation requires immediate
implementation, time is of the essence and only hasty preparations are sometimes
possible. What is important is whether the speed of preparation compromised the
rights of the accused. (Norgie Cruz v. People, G.R. No. 164580, Feb. 6, 2009)
Presumption of Regularity
It is settled rule that in cases involving violations of the Comprehensive
Dangerous Drugs Act, credence is given to prosecution witnesses who are police officers
for they are presumed to have performed their duties in a regular manner, unless there
is evidence to the contrary. In this case, no evidence was adduced showing any
irregularity in any material aspect of the conduct of the buy-bust operation. Neither
was there any proof that the prosecution witnesses who were members of the buy-bust
operation team, particularly those whose testimonies were in question, were impelled
by any ill-feeling or improper motive against appellants which would raise a doubt about
their credibility. (People v. Darisan, et.al., G.R. No. 176151, Jan. 30, 2009; People v.
Llamado, G.R. No. 185278, March 13, 2009)
The Objective Test
In determining the credibility of prosecution witnesses regarding the conduct of
buy-bust operation, the objective test, as laid down in People v. Doria, is utilized. It
has been held that it is the duty of the prosecution to present a complete picture
detailing the buy-bust operationfrom the initial contact between the poseur-buyer and

130

the pusher, the offer to purchase, the promise or payment of the consideration, until
the consummation of the sale by the delivery of the illegal subject of sale. The manner
by which the initial contact was made, the offer to purchase the drug, the payment of
the buy-bust money, and the delivery of the illegal drug must be the subject of strict
scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to
commit an offense. (People v. Ong, G.R. No. 175940, Feb. 6, 2008)

Buy-Bust Transaction, How Consummated

When what is involved is a prosecution for illegal sale of regulated or prohibited
drugs, conviction can be had if the following elements are present: (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. What is material is the proof that the transaction
or sale actually took place, coupled with the presentation in court of the corpus delicti of
the crime. The delivery of the contraband to the poseur-buyer and the receipt of the
marked money consummate the buy-bust transaction between the entrapment officers
and the accused. The crime of illegal sale of dangerous drugs is committed as soon as
the sale transaction is consummated. (People v. Encila, G.R. No. 182419, Feb. 10,
2009)
Proof of Buy-Bust
Neither law nor jurisprudence requires the presentation of any of the money
used in a buy-bust operation, much less is it required that the boodle money be marked
or entered in the police blotter. xxx Well-settled is the rule that the testimony of an
informant who witnessed the illegal sale of shabu is not essential for conviction and
may be dispensed with if the poseur-buyer testified on the same, because the
informants testimony would merely corroborate that of the poseur-buyer. (People v.
Santiago, et.al., G.R. No. 175326, Nov. 28, 2007)
Presentation of Money Used; Buy Bust Operation
In the case of People v. Mala, we held that what is material is the proof that the
transaction actually took place, coupled with the presentation before the court of the
corpus delicti. It bears emphasizing that neither the law nor jurisprudence requires the
presentation of any of the money used in a buy-bust operation, for the only elements
necessary to consummate the crime is proof that the illicit transaction took place,
coupled with the presentation in court of the illicit drug as evidence. (People v. Quiaoit,
Jr., G.R. No. 175222, July 27, 2007)
Marked Money Not Indispensable, Corroborative in Nature
The failure to present the buy-bust money is not fatal. The marked money used
in the buy-bust operation is not indispensable but merely corroborative in nature. In
the prosecution for the sale of dangerous drugs, the absence of marked money does
not create a hiatus in the evidence for the prosecution as long as the sale of dangerous
drugs is adequately proven nd the drug subject of the transaction is presented before
the court. Neither law nor jurisprudence requires the presentation of any money used
in the buy-bust operation. What is material to a prosecution for illegal sale of
dangerous drugs is the proof that the transaction or sale actually took place, coupled
with the presentation in court of the corpus delicti as evidence. (Norgie Cruz v. People,
G.R. No. 164580, Feb. 6, 2009)

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Failure to Record the Boodle Money

The failure of the PDEA operatives to record the boodle money will not render
the buy-bust operation illegal. The recording of marked money used in a buy-bust
operation is not one of the elements for the prosecution of sale of illegal drugs. The
recording or non-recording thereof in an official record will not necessarily lead to an
acquittal as long as the sale of the prohibited drug is adequately proven. (People v.
Clemente, et.al., G.R. No. 178876, June 27, 2008)
Failure to Present Informant
That the informant was not presented by the prosecution does not prejudice the
States case as all the elements of illegal sale and possession of shabu by appellant
were satisfactorily proved by testimonial, documentary and object evidence. At best,
the testimony of the informant would only have been corroborative of the testimonies of
PO2 Barrameda and PO2 Igno. It is not indispensable. People v. Uy explains:
The failure to present the informer did not diminish the integrity of the testimony
of the witnesses for the prosecution. Informers are almost always never presented in
court because of the need to preserve their invaluable service to the police. Their
testimony or identity may be dispensed with since his or her narration would be merely
corroborative, as in this case, when the poseur-buyer himself testified on the sale of the
illegal drug. (Underscoring supplied) (People v. Garcia, G.R. No. 172975, August 8,
2007; People v. Botanes, G.R. No. 179150, June 17, 2008; People v. Bohol, G.R. No.
171729, July 28, 2008; People v. Naquita, G.R. No. 180511, July 28, 2008)
Simultaneous Exchange of the Marked Money and Prohibited Drugs Not
Necessary
Appellants argument that the poseur-buyer was not able to strike a deal or a sale
because one of the elements of the crime charged was wanting payment by the
poseur-buyer for the thing sold or receipt of the marked money by the seller of the
dangerous drugs is erroneous. Xxx There is no rule of law which requires that in buybust operations there must be a simultaneous exchange of the marked money and the
prohibited drug between the poseur-buyer and the pusher.
It must be emphasized that appellants were charged with selling, trading,
delivering, giving away, dispatching in transit and transporting dangerous drugs under
Section 5, Article II of Republic Act No. 9165. The charge was not limited to selling.
Said section punishes not only the sale but also the mere act of delivery of prohibited
drugs after the offer to buy by the entrapping officer has been accepted by the seller.
In the distribution of prohibited drugs, the payment of any consideration is immaterial.
The mere act of distributing the prohibited drugs to others is in itself a punishable
offense. (People v. Clemente, et.al., G.R. No. 178876, June 27, 2008)
Pre-operation Orders and Post Operation Report
The non-presentation of pre-operation orders and post operation report is not
fatal to the cause of the prosecution, because they are not indispensable in a buy-bust
operation. What determines if there was, indeed, a sale of dangerous drugs is proof of
the concurrence of all the elements of the offense; to wit: (1) the identity of the buyer
and the seller, the object, and consideration; and (2) the delivery of the thing sold and
the payment therefor, which the prosecution has satisfactorily established. (People v.
Dumlao, G.R. No. 181599, August 20, 2008)
The Chain of Custody Requirement

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Board Regulation No. 1, series of 2002 defines chain of custody as the duly
recorded authorized movements and custody of seized drugs or controlled chemicals or
plant sources of dangerous drugs or laboratory equipment of each stage, from the time
of seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction.
As a method of authenticating evidence, the chain of custody rule requires that
the admission of the exhibit be preceded by evidence sufficient to support a finding that
the matter in question is what the proponent claims it to be. It would thus include
testimony about every link in the chain, from the moment the item was seized to the
time it is offered in court as evidence, such that every person who handled the same
would admit how and from whom it was received, where it was and what happened to it
while in the witness possession, the condition in which it was received and the
condition in which it was delivered to the next link in the chain. The same witnesses
would then describe the precautions taken to ensure that there had been no change in
the condition of the item and no opportunity for someone not in the chain to have
possession of the same. It is from the testimony of every witness sho handled the
evidence from which a reliable assurance can be derived that the evidence presented in
court is one and the same as that seized from the accused. (People v. Obmiranis, G.R.
No. 181492, Dec. 16, 2008; People v. Ruiz Garcia, G.R. No. 173480, Feb. 25, 2009;
People v. Cervantes, G.R. No. 181494, March 17, 2009)
Physical inventory and photograph
Requirement under Section 21
vis--vis marking of seized evidence
While the first sentence of Section 21(a) of the Implementing Rules and
Regulations of R.A. No. 9165 states that the apprehending officer/team having initial
custody and control of the drugs shall, immediately after seizure and confiscation,
physically inventory and photograph the same, the second sentence makes a
distinction between warrantless seizures and seizures by virtue of a warrant, thus:
(a) x x x Provided, that the physical inventory and photograph shall be conducted at
the place where the search warrant is served; or at the nearest police station or at the
nearest office of the apprehending officer/team, whichever is practicable, in case of
warrantless seizures; Provided, further 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 of and custody over said
items. [Emphasis supplied]
Thus, the venues of the physical inventory and photography of the seized items
differ and depend on whether the seizure was made by virtue of a search warrant or
through a warrantless seizure such as a buy-bust operation.
In seizures covered by search warrants, the physical inventory and photograph
must be conducted in the place where the search warrant was served. On the other
hand, in case of warrantless seizures such as a buy-bust operation, the physical
inventory and photograph shall be conducted at the nearest police station or office of
the apprehending officer/team, whichever is practicable; however, nothing prevents the
apprehending officer/team from immediately conducting the physical inventory and
photography of the items at the place where they were seized, as it is more in keeping
with the laws intent of preserving their integrity and evidentiary value. (People v.
Sanchez, G.R. No. 175822, October 15, 2008)

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Mandatory Drug Testing

Section 36 of R.A. 9165 provides:
SEC. 36 Authorized Drug Testing ---Authorized drug testing shall be done by
any government forensic laboratories accredited and monitored by the DOH to
safeguard the quality of the test results. x x x The drug testing shall employ, among
others, two (2) testing methods, the screening test which will determine the positive
result as well as the type of drug used and the confirmatory test which will confirm a
positive screening test. x x x The following shall be subjected to undergo drug testing:

xxxx
(c) Students of secondary and tertiary schools. ---Students of secondary and
tertiary schools shall, pursuant to the related rules and regulations as contained in the
schools student handbook and with notice to the parents, undergo a random drug
testing x x x;
(d)
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 rules and
regulations, x x x for purposes of reducing the risk in the workplace. Any officer or
employee found positive for use of dangerous drugs shall be dealt with administratively
which shall be a ground for suspension or termination, subject to the provisions of
Article 282 of the Labor Code and pertinent provisions of the Civil Service Law;
xxxx
(f) 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 undergo a mandatory drug test.
(g) All candidates for public office whether appointed or elected both in the
national or local government shall undergo a mandatory drug test.
In addition to the above stated penalties in this Section, those found to be
positive for dangerous drugs use shall be subject to the provisions of Section 15 of this
Act.
On the Unconstitutionality of Sec. 36 (g) of RA 9165
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC
resolution, effectively enlarges the qualification requirements enumerated in the Sec. 3,
Art. VI of the Constitution. As couched, said Sec. 36 (g) unmistakably requires a
candidate for senator to be certified illegal-drug clean, obviously as a pre-condition to
the validity of a certificate of candidacy for senator or, with like effect, a condition sine
qua non to be voted upon and, if proper, be proclaimed as senator-elect. The COMELEC
resolution completes the chain with the proviso that no person elected to any public
office shall enter upon the duties of his office until he has undergone mandatory drug
test.
Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the
implementing COMELEC Resolution add another qualification layer to what the 1987

134

Constitution, at the minimum, requires for membership in the Senate. Whether or not
he drug-free bar set up under the challenged provision is to be hurdled before or after
election is really of no moment, as getting elected would be of little value if one cannot
assume office for non-compliance with the drug-testing requirement. (Pimentel v.
COMELEC, G.R. No. 161658, Nov. 3, 2008)
On the Constitutionality of Sec. 36 (c), (d), and (f) of RA 9165 for secondary and
tertiary level students and public and private employees, while mandatory, is a random
and suspicionless arrangement.
The objective is to stamp out illegal drug and
safeguard in the process the well being of [the] citizenry, particularly the youth, from
the harmful effects of dangerous drugs. This statutory purpose, per the policydeclaration portion of the law, can be achieved via the pursuit by the state of an
intensive and unrelenting campaign against the trafficking and use of dangerous drugs
x x x through an integrated system of planning, implementation and enforcement of
anti-drug abuse policies, programs and projects.
Guided by Vernonia and Board of Education, the Court is of the view and so
holds that the provisions of RA 9165 requiring mandatory, random, and suspicionless
drug testing of students are constitutional. Indeed, it is within the prerogative of
educational institutions to require, as a condition for admission, compliance with
reasonable school rules and regulations and policies. To be sure, the right to enroll is
not absolute; it is subject to fair, reasonable, and equitable requirements.
Just as in the case of secondary and tertiary level students, the mandatory but
random drug test prescribed by Sec. 36 of RA 9165 for officers and employees of public
and private offices is justifiable, albeit not exactly for the same reason. The Court
notes in this regard that petitioner SJS, other that saying that subjecting almost
everybody to drug testing, without probable cause, is unreasonable, an unwarranted
intrusion of the individual right to privacy, has failed to show how the mandatory,
random, and suspicionless drug testing under Sec. 36(c) and (d) of RA 9165 violates
the right to privacy and constitutes unlawful and/or unconsented search under Art. III,
Secs. 1 and 2 of the Constitution.
Notably, RA 9165 does not oblige the employer concerned to report to the
prosecuting agencies any information or evidence relating to the violation of the
Comprehensive Dangerous Drugs Act received as a result of the operation of the drug
testing. All told, therefore, the intrusion into the employees privacy, under RA 9165, is
accompanied by proper safeguards, particularly against embarrassing leakages of test
results, and is relatively minimal. (Social Justice Society v. PDEA, G.R. No. 157870,
Nov. 3, 2008)
Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no
valid justification for mandatory drug testing for persons accused of crimes. In the case
of students, the constitutional viability of the mandatory, random, and suspicionless
drug testing for students emanates primarily from the waiver by the students of their
right to privacy when they seek entry to the school, and from their voluntarily
submitting their persons to the parental authority of school authorities. In the case of
private and public employees, the constitutional soundness of the mandatory, random,
and suspicionless drug testing proceeds from the reasonableness of the drug test policy
and requirement.
When persons suspected of committing a crime are charged, they are singled
out and are impleaded against their will. The persons thus charged, by the bare fact of
being haled before the prosecutors office and peaceably submitting themselves to drug
testing, if that be the case, do not necessarily consent to the procedure, let alone waive

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their right to privacy. To impose mandatory drug testing on the accused is a blatant
attempt to harness a medical test a tool for criminal prosecution, contrary to the stated
objectives of RA 9165. Drug testing in this case would violate a persons right to
privacy guaranteed under Sec. 2, Art. III of the Constitution. Worse still, the accused
drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals,
as well as instruments/paraphernalia and/or laboratory equipment so 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.
Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal
as long as there is justifiable ground therefor, and as long as the integrity and the
evidentiary value of the confiscated/seized items, are properly preserved by the
apprehending officer/team. Its non-compliance will not render an accuseds arrest
illegal or the items seized/confiscated from him inadmissible. What is of utmost
importance is the preservation of the integrity and the evidentiary value of the seized
items, as the same would be utilized in the determination of the guilt or innocence of
the accused. (People v. Del Monte, G.R. No. 179940, April 23, 2008; People v.
Clemente, et.al., G.R. No. 178876, June 27, 2008; People v. Macatingag, G.R. No.
181037, January 19, 2009)
Assuming that Sections 21 and 86 were indeed breached, appellant should have
raised these issues before the trial court. This, he did not do. Never did he question
the custody and disposition of the items that were supposedly taken from him. It was
only on appeal before the Court of Appeals that he raised them. This, he cannot do.
We held:
The law excuses non-compliance under justifiable grounds. However, whatever
justifiable grounds may excuse the police officers involved in the buy-bust operation in
this case from complying with Section 21 will remain unknown, because appellant did
not question during trial the safekeeping of the items seized from him. Indeed, the
police officers alleged violations of Sections 21 and 86 of Republic Act 9165 were not
raised before the trial court but were raised instead for the first time on appeal. In no
instance did appellant least intimate at the trial court that were lapses in the
sakekeeping of the seized items that affected their integrity and evidentiary value.
Objection t evidence cannot be raised for the first time on appeal; when a party desires
the court to reject the evidence offered, he must so state in the form of objection.
Without such objection he cannot raise the question for the first time on appeal.
(People v. Pringas, G.R. No. 175928, August 31, 2007)
Transfer of Drug-Related cases to PDEA (Sections 21 & 86 of R.A. 9165)
To recapitulate, the challenged buy-bust operation, albeit made without the
participation of PDEA, did not violate appellants constitutional right to be protected
from illegal arrest. There is nothing in Republic Act No. 9165 which even remotely
indicate the intention of the legislature to make an arrest made without the
participation of the PDEA illegal and evidence obtained pursuant to such an arrest
inadmissible. Moreover, the law did not deprive the PNP of the power to make arrests.
(People v. Sta. Maria, G.R. No. 171019, February 23, 2007)

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Negative Allegation
The general rule is that if a criminal charge is predicated on a negative
allegation, or a negative averment is an essential element of a crime, the prosecution
has the burden to prove the charge. However, this rule admits of exceptions. Where
the negative of an issue does not permit of direct proof, or where the onus
probandi rests upon him. Stated otherwise, it is not incumbent on the prosecution to
adduce positive evidence to support a negative averment the truth of which is fairly
indicated by established circumstances and which, if untrue, could readily be disproved
by the production of documents or other evidence within the defendants knowledge or
control. For example, where a charge is made that a defendant carried on a certain
business without a license (as in the case at bar, whether the accused is charged with
the sale of a regulated drug without authority), the fact that he has a license is a
matter which is peculiarly within his knowledge and he must establish that fact or suffer
conviction. x x x (italics in the original) (Su Zhi Shan @ Alvin Ching So, v. People
G.R. No. 169933, March 9, 2007)
Limited Application of the RPC on R.A. 9165
With the aforesaid section, the provisions of the Revised Penal Code shall no
longer apply to the provisions of the Drugs law except when the offender is a minor.
Thus, Article 63(2) of the Revised Penal Code shall not be used in the determination of
the penalty to be imposed on the accused. Since Section 98 of the Drugs law contains
the word shall, the non-applicability of the Revised Penal Code provisions is
mandatory, subject only to the exception in case the offender is a minor. (People v.
Nicolas, G.R. No. 170234, February 8, 2007)
In accordance with Section 98, Article XIII of Republic Act No. 9165, the
provisions of the Revised Penal Code find limited applicability with respect to the
provisions of the said Act. Section 98 reads:
Sec. 98. Limited Applicability of the Revised Penal Code. Notwithstanding any law, rule or regulation to the contrary, the
provisions of the Revised Penal Code (Act No. 3815), as amended,
shall not apply to the provisions 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 herein shall be
reclusion perpetua to death.
Thus, in determining the imposable penalty, Article 63(2) of the Revised Penal
Code shall not be applied. Under this article, in all cases in which the law prescribes a
penalty composed of two indivisible penalties, the lesser penalty shall be applied when
there are neither mitigating nor aggravating circumstances. Since Section 98 of the
Drugs Law contains the word shall, the non-applicability of the Revised Penal Code
provisions is mandatory, subject to exception only in case the offender is a minor.
(People v. Santos, G.R. No. 176735, June 26, 2008)

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RECENT CASES on Section 21 of RA 9165

ACQUITTAL:
-

Cacao v. People, G.R. No. 180870, January 22, 2010

The patent inconsistency between the testimonies of Mangapit and Pang-ag, on one
hand, and the testimony of Ancheta on the other hand, necessarily leads to doubt that
the plastic sachet of shabu identified in court is the same item that was allegedly seized
and confiscated from petitioner. At any rate, the identification made by the witnesses
on the item allegedly seized from petitioner is rendered meaningless and bereft of
probative value in view of the categorical denial of the evidence custodian that he
received the same from Mangapit. Hence, there can be no crime of illegal possession of
a prohibited drug when nagging doubts persist on whether the item confiscated was the
same specimen examined and established to be the prohibited drug.

People v. Kamad, G.R. No. 174198, January 19, 2010

The following links must be established ion the chain of custody in a buy-bust
situation: first, the seizure and marking, if practicable, of the illegal drug recovered
from the accused by the apprehending officer; second, the turnover of the illegal drug
seized by the apprehending officer to the investigating officer; third, the turnover by
the investigating officer of the illegal drug to the forensic chemist for laboratory
examination; and fourth, the turnover and submission of the marked illegal drug seized
from the forensic chemist to the court. In this case, however, SPO2 Sanchez testimony
lacks specifics on how the seized shabu was handled immediately after the accusedappellants arrest.
SPO2 Sanchez testimony regarding the post-arrest police
investigation failed to provide particulars on whether the shabu was turned over to the
investigator. The pieces of evidence notably fail to identify the person who personally
brought the seized shabu to the PNP Crime Laboratory. They also fail to clearly identify
the person who received the shabu at the forensic laboratory.
There was also non-compliance with the prescribed procedure under Sec. 21 of RA
9165. SPO2 Sanchez failed to provide specific details on how the seized shabu was
marked although the evidence shows that the shabu was marked as ES-1-161009
before it was sent to a forensic laboratory. His testimony also failed to state whether
the marking of the shabu was done immediately after its seizure (as Section 21 of RA
9165 requires) or during the investigation. His testimony likewise failed to disclose if a
physical inventory and photography of the seized items had taken place, or if they had,
whether these were undertaken in the presence of the accused or his counsel, or a
representative from the media and the Department of Justice, and of an elective official.

People v. Frondozo, G.R. No. 177164, June 30, 2009

To establish the identity of the shabu seized from Frondozo, the procedures laid
down in Rep. Act No. 9165 should be complied with. Section 21 of the Implementing
Rules and Regulations of Rep. Act No. 9165 clearly outlines the post-seizure procedure
in taking custody of seized drugs. It states: (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

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Justice (DOJ), and any elected public official who shall be required to sign the copies of
the inventory and be given a copy therof.
In this case, the arresting officers failed to strictly comply with the procedures
for the custody and disposition of confiscated dangerous drugs as prescribed by Rep.
Act No. 9165. The arresting officers did not mark the shabu immediately after they
arrested Frondozo. Further, while there was testimony regarding the marking of the
shbu after it was turned over to the police investigator, no evidence was presented to
prove that the marking therof was done in the presence of Frondozo. Also, fatal in the
prosecutions case is the failure of the arresting officers to take a photograph and make
an inventory of the confiscated materials in the presence of Frondozo. Likewise, there
was no mention that any representative from the media, DOJ or any elected public
official had been present during the inventory or that any of these persons had been
required to sign the copies of the inventory.
-

People v. Partoza, G.R. No. 182418, May 8, 2009

PO3 Tougan testified that he marked the two plastic sachets containing white
crystalline substance in the police station. However, he did not mark the seized drugs
immediately after he arrested appellant in the latters presence. Neither did he make
an inventory and take a photograph of the confiscated items in the presence of
appellant. There was no representative from the media and the Department of Justice,
or any elected public official who participated in the operation and who were supposed
to sign and inventory of seized items and be given copies thereof. None of these
statutory safeguards were observed.
While non-compliance by the buy-bust team with Section 21 is not fatal as long as
there is a justifiable ground therefore, and as long as the integrity and the evidentiary
value of the confiscated/seized items are properly preserved by the apprehending team,
yet these conditions were not met in the case at bar. No explanation was offered by
PO3 Tougan for his failure to observe the rule. Furthermore, while PO3 Tougan
admitted to have in his possession the shabu from the time appellant was apprehended
at the crime scene to the police station, records are bereft of proof on how the seized
items were handled from the time they left the hands of PO3 Tougan. PO3 Tougan
mentioned a certain Inspector Manahan as the one who signed the request for
laboratory examination. He did not however relate to whom the custody of the drugs
was turned over. Furthermore, the evidence of the prosecution did not reveal the
identity of the person who had the custody and safekeeping of the drugs after its
examination and pending presentation in court. The failure of the prosecution to
establish the chain of custody is fatal to its cause. All told, the identity of the corpus
delicti in this case was not proven beyond reasonable doubt.

People v. Robles, G.R. No. 177220, April 24, 2009

The Court finds that the prosecution failed to clearly establish the chain of custody
of the seized plastic sachet containing shabu subject of the alleged sale. PO2 Besona
and PO3 Malicse did not adequately explain how the corpus delicti transferred hands
from the time it was supposedly confiscated from appellant to the time it was presented
in court as evidence. PO2 Besona testified that he turned over the sachet of shabu to
SPO3 Ocfemia when appellant was arrested. No explanation was given, however, as to
how the substance reached the crime laboratory for examination. PO2 Besona did not
mark the substance immediately after the apprehension of appellant. While PO2
Besona claimed that it was marked by an investigator in his presence, he did not state
at what precise point of the operation the marking took place. Both the investigator

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who purportedly made the marking and SPO3 Ocfemia were not presented in court to
testify on what transpired before and after the substance was turned over to them.
Additionally, nothing on record shows compliance by the buy-bust team with the
procedural requirements of Section 21, paragraph 1 of Article II of R.A. No. 9165_with
respect to custody and disposition of confiscated drugs. There was no physical
inventory and photograph of the items allegedly confiscated from appellant. There was
likewise no explanation offered for the failure to observe the rule. The failure of the
police to comply with the procedure in the custody of seized drugs raises doubt as to
their origins, and negates the operation of the presumption of regularity accorded to
police officers.
-

Sales v. People, G.R. No. 182296, April 7, 2009

Neither physical inventory nor photograph of the sachet and buy-bust money taken
in the presence of petitioner, or her representative or counsel, a representative from the
media and the Department of Justice, as required by law, was taken. No justification
whatsoever was proffered by the apprehending team for its failure to observe the legal
safeguards.

Carino v. People, G.R. No. 178757, March 13, 2009

The prosecution has not shown that they had extended reasonable efforts to comply
with the statutory requirements in handling the evidence. From the testimonies of the
members of the arresting team, it is clear that they immediately seized the plastic
sachets, took custody thereof and brought the same to the police station. It was at the
police stationand not at the place where the item was seized from appellantwhere
the unnamed police investigator had placed the markings on the specimens. Moreover
the markings were placed not in the presence of petitioners as required by law. These
flaws in the conduct of the post-seizure custody of the dangerous drug allegedly
recovered from petitioners, taken together with the failure of the key persons who
handled the same to testify on the whereabouts of the exhibits before they were offered
in evidence in court, militate against the prosecutions cause because they not only cast
doubt on the identity of the corpus delicti but also tend to negate, if not totally
discredit, the claim of regularity in the conduct of official police operation advanced by
the OSG.

People v. Garcia, G.R. No. 173480, February 25, 2009

Other than the markings made by PO1 Garcia and the police investigator (whose
identity was not disclosed), no physical inventory was ever made, and no photograph of
the seized items was taken under the circumstances required by R.A. No. 9165 and its
implementing rules. While there was testimony with respect to the marking of the
seized items at the police station, no mention whatsoever was made on whether the
marking had been done in the presence of Ruiz or his representatives. There was
likewise no mention that any representative from the media and the Department of
Justice, or any elected official had been present during this inventory, or that any of
these people had been required to sign the copies of the inventory. In addition, while
PO1 Garcia duly testified on the identity of the buyer and seller, on the consideration
that supported the transaction, and on the manner the sale took place, -the
prosecutions evidence failed to establish the chain that would have shown that the
marijuana presented in court was the very item seized from Ruiz at the time of his
arrest.

140

People v. Obmiranis, G.R. No. 181492, December 16, 2008

Board Regulation No. 1, series of 2002 defines chain of custody as the duly
recorded authorized movements and custody of seized drugs or controlled chemicals or
plant sources of dangerous drugs or laboratory equipment of each stage, from the time
of seizure/confiscation to receipt in the forensic laboratory to safekeeping to
presentation in court for destruction.
It must be established with unwavering
exactitude that the dangerous drug presented in court as evidence against the accused
is the same as that seized from him in the first place. The chain of custody requirement
performs this function in that it ensures that unnecessary doubts concerning the
identity of the evidence are removed.
The prosecution evidence in the case at bar, however, does not suffice to afford such
assurance. Cinco, who, according to Velasco, took initial custody of the plastic sachet at
the time of arrest and who allegedly marked the same with the initials SOO at the
police station, was not even presented in court. The same is true with respect to the
laboratory for analysis and testing. Aside from that, it was not reasonably explained
why these same witnesses were not able to testify in court. Furthermore, Velasco, the
leader of the raiding team, admitted that as soon as appellant was arrested, Cinco had
taken custody of the plastic sachet of shabu, placed it in his pocket and brought the
same together with appellant to the police station. It was at the police station and not
at the place where the item was seized from appellant where according to him
(Velasco), Cinco had placed the initials SOO on the specimen. Velasco could not even
remember whether or not the specimen had been properly inventoried and
photographed at least in appellants presence. Even more telling is the fact that, as
elicited from Velasco himself during his cross-examination, no evidence custodian had
been designated by the raiding team to safeguard the identity and integrity of the
evidence supposedly seized from appellant.

Bondad v. People, G.R. No. 173804, December 10, 2008

Failure of the apprehending officers to comply with the inventory and photographing
requirements of Section 21 RA 9165 compromised the identity of the items seized,
which is the corpus delicti of the crimes charged.

People v. Magat, G.R. No. 179939, September 29, 2008

It is indisputable that the procedures for the custody and disposition of confiscated
dangerous drugs in Section 21 of R.A. No. 9165_were not complied with. PO1 Santos
admitted that he marked the two plastic sachets containing white crystalline substance
in the police station. He did not mark the seized items immediately after he arrested
appellant in the latters presence. He also did not make an inventory and take a
photograph of the confiscated materials in the presence of appellant. Other that the
three policemen, there were no other people who participated in the alleged buy-bust
operation._There was no representative from the media and the Department of Justice,
or any elected public official who participated in the operation and who were supposed
to sign an inventory of seized items and be given copies thereof. None of the statutory
safeguards were observed. Although PO1 Santos had written his initials on the two
plastic sachets submitted to the PNP Crime Laboratory Office for examination, it was not
indubitably shown by the prosecution that PO1 Santos immediately marked the seized
drugs in the presence of appellant after their alleged confiscation. There is doubt as to

141

whether the substances seized from appellant were the same ones subjected to
laboratory examination and presented in court.
R.A. No. 9165 had placed upon the law enforcers the duty to establish the chain of
custody of the seized drugs to ensure the integrity of the corpus delicti. Thru proper
exhibit handling, storage, labeling and recording, the identity of the seized drugs is
insulated from doubt from their confiscation up to their presentation in court. While the
seized drugs may be admitted in evidence, it does not necessarily follow that the same
should be given evidentiary weight if the procedure in Section 21 of R.A. No. 9165 was
not complied with. The Court stressed that the admissibility of the seized dangerous
drugs in evidence should not be equated with its probative value in proving the corpus
delicti. The admissibility of evidence depends on its relevance and competence while
the weight of evidence pertains to evidence already admitted and its tendency to
convince and persuade. All told, the corpus delecti in this case is not legally extant.
-

Malillin v. People, G.R. No. 172953, April 30, 2008

Section 21-of the Implementing Rules and Regulations of R.A. No. 9165 clearly
outlines the post-seizure procedure in taking custody of seized drugs. In a language
too plain to require a different construction, it mandates that the officer acquiring initial
custody of drugs under a search warrant must conduct the photographing and the
physical inventory of the item at the place where the warrant has been served.
Esternon deviated from this procedure. It was elicited from him that at the close of the
search of petitioners house, he brought the seized items immediately to the police
station for the alleged purpose of making a true inventory thereof, but there appears
to be no reason why a true inventory could not be made in petitioners house when in
fact the apprehending team was able to record and mark the seized items and there
and then prepare a seizure receipt therefore. Lest it be forgotten, the raiding team has
had enough opportunity to cause the issuance of the warrant which means that it has
had as much time to excuse non-compliance therewith, the same cannot benefit the
prosecution as it failed to offer any acceptable justification for Esternons course of
action.
Likewise, Esternons failure to deliver the seized items to the court demonstrates a
departure from the directive in the search warrant that the items seized be immediately
delivered to the trial court with a true and verified inventory of the same,-as required
by Rule 126, Section 12 of the Rules of Court. People v. Go characterized this
requirement as mandatory in order to preclude the substitution of or tampering with
said items by interested parties. Thus, as a reasonable safeguard, People vs. Del
Castillo declared that the approval by the court which issued the search warrant is
necessary before police officers can retain the property seized and without it, they
would have no authority to retain possession thereof and more so to deliver the same
to another agency. Mere tolerance by the trial court of a contrary practice does not
make the practice right because it is violative of the mandatory requirements of the law
and it thereby defeats the very purpose for the enactment.

People v. Orteza, G.R. No. 173051, July 31, 2007

The records do not show that police officers complied with the proper procedure in
the custody of seized drugs and/or paraphernalia should, immediately after seizure or
confiscation, have the same physically inventoried and photographed in the presence of
the accused, if there be any, and or his representative, who shall be required to sign the
copies of the inventory and be given a copy thereof. The failure of the agents to comply

142

with the requirement raises doubt whether what was submitted for laboratory
examination and presented in court was actually recovered from appellant. It negates
the presumption that official duties have been regularly performed by the police
officers.
CONVICTION:
-

People v. De Leon, G.R. No. 186471, January 25, 2010

Sec. 21 of RA 9165 need not be followed as an exact science. Non-compliance with
Sec. 21 does not render an accuseds arrest illegal or the items seize/confiscated from
him inadmissible. What is essential is the preservation of the integrity and the
evidentiary value of the seized items, as the same would be utilized in the
determination of the guilt or innocence of the accused. In the instant case, there was
substantial compliance with the law and the integrity of the drugs seized from appellant
was preserved.

People v. Cruz, G.R. No. 185381, December 16, 2009

Appellant argues that the police officers failed to photograph or mark the shabu
immediately after the alleged buy-bust operation in his presence, or his counsel, a
representative from the media, a representative from the Department of Justice, or any
elected public official. The Court, however, finds that there was substantial compliance
with the law and the integrity of the drugs seized was preserved. PO3 Arago seized and
confiscated the dangerous drugs, as well as the marked money, appellant was
immediately arrested; and in that spot where he was arrested, PO3 Arago marked the
sachets of shabu with the initials of appellant. PO2 Aguinaldo also marked the two (2)
sachets he found in appellants person with appellants initials. Appellant was then
brought to the police station for investigation. Immediately thereafter, the plastic
sachets were forwarded to the PNP Crime Laboratory with a request for examination to
determine the presence of any prohibited drug. As per Physical Science Report No. D747-03, the specimens submitted contained methamphetamine hydrochloride or shabu.

People v. Ventura, G.R.No. 184957, October 27, 2009

The purpose of the procedure outlined in the implementing rules (Sec. 21 RA
91665) is centered on the preservation of the integrity and evidentiary value of the
seized items. All evidence, including the markings on the plastic sachet containing the
shabu, prove that the substace tested by the forensic chemist, whose laboratory tests
were well-documented, was the same as that taken from accused-appellant. Moreover,
the integrity of the evidence is presumed to be preserved, unless there is a showing of
bad faith, ill will, or proof that the evidence has been tampered with.

People v. Lazaro, G.R. No. 186418, October 16, 2009

Appellant raised the buy-bust teams alleged non-compliance with Section 21, Article
II of Republic Act No. 9165 for the first time on appeal. In People v. Sta. Maria, the
Court held that the law excuses non-compliance under justifiable grounds. However,
whatever justifiable grounds may excuse the police officers involved in the buy-bust
operation in this case from complying with Section 21 will remain unknown, because
appellant did not question during trial the safekeeping of the items seized from him.
Thorough review of the records, however, reveals that the chain of custody of the

143

seized substance was not broken and that the prosecution did not fail to identify
properly the drugs seized in this case.
-

People v. Resurreccion, G.R. No. 186380, October 12, 2009

Jurisprudence tells us that the failure to immediately mark seized drugs will not
automatically impair the integrity of chain of custody. People v. Sanchez explains that
RA 9165 does not specify a time frame for immediate marking, or where said marking
should be done. To be able to create a first link in the chain of custody, then, what is
required is that the marking be made in the presence of the accused and upon
immediate confiscation. Immediate confiscation has no exact definition. Thus, in
People v. Gum-Oyen, testimony that included the marking of the seized items at the
police station and in the presence of the accused was sufficient in showing compliance
with the rules on chain of custody. Marking upon immediate confiscation contemplates
even marking at the nearest police station or office of the apprehending team.

People v. Teodoro, G.R. No. 185164, June 22, 2009

The chain of custody of the seized prohibited drugs was shown not to have been
broken. After the seizure of the drugs from appellants possession, PO1 Climacosa and
PO1 Antipasado marked the two (2) plastic sachets. The plastic sachet that was sold to
PO1 Climacosa was marked MC, while the plastic sachet that was recovered by PO1
Antipasado was marked MC-1. These plastic sachets containing a white crystalline
substance were immediately forwarded to the PNP Crime Laboratory in EPD for
examination to determine the presence of dangerous drugs.
After a qualitative
examination conducted on the specimens, PSI Cejes concluded that the white
crystalline substance was positive for methylamphetamine hydrochloride (shabu), a
dangerous drug. There can be no doubt that the drugs seized from appellant were the
same ones examined in the crime laboratory. Plainly, the prosecution established the
crucial link in the chain of custody of the seized shabu from the time they were first
discovered until they were brought for examination.
Jurisprudence teems with pronouncements that non-compliance with Section 21 will
not render an accuseds arrest illegal or the items seized or confiscated from him
inadmissible.
Aside from the presumption that the police operatives regularly
performed their duties, they gave consistent and straightforward narrations of what
transpired on May 28, 2004 that they apprehended the appellant in a buy-bust
operation, and that upon being frisked, appellant was also found to be in possession of
another sachet containing a white crystalline substance later on found to be
methamphetamine hydrochloride, more popularly known as shabu.

People v. Gum-Oyen, G.R. No. 182231, April 16, 2009

The prosecutions evidence sufficiently established the unbroken chain of custody of
the seized drugs beginning from the entrapment team, to the investigating officer, to
the forensic chemist whose laboratory tests were well-documented, up to the time there
were offered in evidence. The chain-of-custody rule requires that the admission of an
exhibit be preceded by evidence sufficient to support a finding that the matter in
question is what the proponent claims it to be. The arresting officers also strictly
complied with the guidelines prescribed by law regarding the custody and control of the

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seized drugs._There was testimony regarding the marking of the seized items at the
police station and in the presence of appellant. Likewise there was mention that an
elected official was present during the inventory. In addition, it appears on record that
the team photographed the contraband in accordance with law._Absent any indication
that the police officers were ill-motivated in testifying against appellant, full credence
should be given to their testimonies. In sum, contrary to appellants lone argument,
the prosecution established the corpus delicti with moral certainty. Finally, it bears
underscoring that appellant himself admitted that he was carrying marijuana at the
time of his arrest and even though he knew it was against the law to so possess it in
any amount.
-

People v. Llamado, G.R. No. 185278, March 13, 2009

The failure on the part of the police officers to take photographs and make an
inventory of the drugs seized from the appellant was not fatal because the prosecution
was able to preserve the integrity and evidentiary value of the said illegal drugs. PO2
Brubio was able to put the necessary markings on the sachet of shabu bought from
appellant, for identification purposes, immediately after the consummation of the drug
sale. He personally delivered the same specimen to the PNP Crime Laboratory for
chemical analysis on the same day the entrapment was conducted. Lastly, PO2 Brubio
was able to identify the said markings in court.

People v. Macatingag, G.R. No. 181037, January 19, 2009

The seized sachet of shabu was immediately marked for proper identification and
forwarded to the Crime Laboratory for examination. The Chemistry Report stated that
the specimen submitted by the apprehending officers indeed bore the marking Exh A
MAG 171200-01-14 and that the same gave positive result to the presence of
Methamphetamine Hydrochloride. Forensic Chemical Officer Tria confirmed that she
examined the specimen submitted by the PDEA and that she was the one who prepared
the Chemistry Report No. D-54-04. It is thus evident that the identity of the corpus
delicti has been properly preserved and established by the prosecution.
The integrity of the evidence is presumed to be preserved unless there is a showing
of bad faith, ill will, or proof that the evidence has been tampered with. Appellant in
this case has the burden to show that the evidence was tampered or meddled with to
overcome a presumption of regularity in the handling of exhibits by public officers and a
presumption that public officers properly discharge their duties._Appellant failed to
discharge such burden.
This Court has held that non-compliance with Section 21, Article II of R.A. No. 9165
will not render an accuseds arrest illegal or the items seized/confiscated from him
inadmissible. What is of utmost importance is the preservation of the integrity and the
evidentiary value of the seized items, as the same would be utilized in the
determination of the guilt or innocence of the accused.

People v. Del Monte, G.R. No. 179940, April 23, 2008

Non-compliance with Section 21 will not render an accuseds arrest illegal or the
items seized/confiscated from him inadmissible. What is of utmost importance is the
preservation of the integrity and the evidentiary value of the seized items as the same

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would be utilized in the determination of the guilt or innocence of the accused. In the
case at bar, appellant never questioned the custody and disposition of the drug that was
taken from him. In fact, he stipulated that the drug subject matter of this case was
forwarded to PNP Regional Crime Laboratory Office 3, Malolos, Bulacan for laboratory
examination which examination gave positive result for methamphetamine
hydrochloride, a dangerous drug. Thus, the integrity and the evidentiary value of the
drug seized from appellant not to have been compromised. Similarly, non-compliance
with Section 21 of said law, particularly the making of the inventory and the
photographing of the drugs confiscated and/or seized, will not render the drugs
inadmissible in evidence. Under Section 3 of Rule 128 of the Rules of Court, evidence is
admissible when it is relevant to the issue and is not excluded by the law or these rules.
For evidence to be inadmissible, there should be a law or rule which forbids its
reception. Nothing in the law, however, will bring about the non-admissibility of the
confiscated and/or seized drugs due to non-compliance with Section 21 of Republic Act
No. 9165. The issue therefore, if there is non-compliance with said section, is not of
admissibility, but of weight evidentiary merit or probative value to be given the
evidence. The weight to be given by the courts on said evidence depends on the
circumstances obtaining in each case.

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