UPDATES in RA 9165 (pros).pptx

UPDATES IN
COMPREHENSIVE DANGEROUS
DRUGS ACT OF 2002 (RA NO. 9165, AS
AMENDED)
FREDDIE M. NOJARA, LL.M
ASST. CITY PROSECUTOR
PROFESSOR, REVIEWER, MCLE LECTURER, AUTHOR

OUTLINE OF LECTURE
1. Preliminaries: Reasons for outlawing drug use/addiction/pushing
2. Punishable act: Secs. 5 and 11 and 15.
3. Problem areas in the prosecution of drug cases (Chain of Custody, Marking, Inventory,
Photographing, and Insulating Witnesses)
4. Recent decisions of the Supreme Court

WHY OUTLAW DRUG ADDICTION
 Drug addiction
 It is one of the most pernicious evils that has ever crept into our
society
 The scourge of society today; an especially vicious crime
 An insidious and dangerous vice, a loathsome, disgusting, and
degrading habit

WHY OUTLAW DRUG ADDICTION
 Those addicted to it slide to the ranks of the living dead, a grave menace to the safety of
law-abiding citizens
 Its usual concomitants are imbecility, pauperism and crime; generation neglect of
appearance, of family and of duty, abject poverty and criminal propensities

WHY OUTLAW DRUG PUSHING
 Drug pushing
 Drug-pushing, as a crime, has been variously condemned as "an especially vicious crime"
 Peddlers of drugs are actually agents of destruction.
 Nothing is more depraved than for anyone to be a merchant of death by selling prohibited
drugs

WHY OUTLAW DRUG PUSHING
 A crime which involves moral turpitude
 Drug pushers have become increasingly daring, dangerous and, worse, openly defiant of the
law

SALE
 Sale is an act of giving away any dangerous drug and/or controlled precursor and essential
chemical whether for money or any other consideration.
 To secure conviction, the prosecution must prove the following elements:
 proof that the transaction or sale took place; and
 the presentation in court of the corpus delicti or the illicit drug as evidence.

SALE
 When consummated?
 It is consummated upon the completion of the sale transaction between the buyer and seller;
which happens the moment the buyer receives the drug from the seller.
 By the time of relinquishing the physical possession of the illegal drugs, the accused
effectively accepted the offer of the poseur-buyer of buy-bust money as his payment for the
illegal drugs.

SALE
 In the illegal sale, the most important part of the buy-bust operation is the actual
exchange of the buy-bust money and the subject drug. (People v. Limson, et al., G.R.
No. 233533, June 30, 2020)
 The identities of the seller and buyer must be established. The element was not
established when the purported seller was identified by a note taken from the courier
(provincial jail) to be given to the purported buyer. The note that was seized from the
courier does not categorically reflect the names of either accused as the seller or the
name of the recipient-buyer. (People v. Quinones, G.R. No. 250908, November 23,
2020)

SALE
 In sale, it is required to establish:
 The identity of the buyer and the seller, the object and the consideration; and
 The delivery of the thing sold and the payment therefor.
 Who can testify?
 The poseur-buyer or informant

SALE
 As a rule, only poseur-buyer can testify to prove sale.
 Informant need not be presented, unless he is the poseur-buyer.
 Back-up security may not testify on sale.
 However, if he witnessed the entire transaction, he may testify to prove that the sale took
place absent any irregularity in the performance of law enforcers' duties.
 If poseur-buyer and informant are the same, he must be presented (People v. Turemutsa,
G.R. No. 227497, April 10, 2019)

SALE
 Sale versus possession
 It is settled that possession of dangerous drugs is necessarily included in the sale of
prohibited drugs.
 Illegal possession was committed when, while there was an agreement of sale of illegal drugs
between the accused and the poseur-buyer, the accused was suddenly arrested before
having accepted the consideration of the sale. (People v. Dejos, G.R. No. 237423, October
12, 2020)

SALE
 Attempted sale
 The accused attempted to sell shabu and commenced by overt acts the commission of the
intended crime however, the sale was aborted when the police officer, upon confirming that
the former had with him the marijuana, made a "miss-call" to another operative, the pre-
arranged signal, and the rest of the team rushed to the area and placed the accused under
arrest. Thus, the accused may only be held liable for attempted illegal sale of dangerous
drugs. (People v. Buniag, G.R. No. 217661, June 26, 2019).

TRANSPORTATION
 As used under the Dangerous Drugs Act, "transport" means "to carry or convey from one
place to another.“
 To sustain a conviction for the crime of illegal transportation of dangerous drugs, the
transportation and the identity and integrity of the seized drugs must be proven beyond
reasonable doubt. (People v. Noah, G.R. No. 228880, March 6, 2019).
 The law does not dictate the threshold how far the drugs should have been transported in
order to fall within the limits of illegal transportation of drugs. [People v. Asislo, 778 Phil. 509
(2016)].

TRANSPORTATION
 There is transportation when the accused on board a motorcycle made a U-turn upon
approaching a road checkpoint where police personnel saw the accused carrying a firearm
tucked in his waist. The accused were found in possession of six sachets containing shabu.
The items were found inside the vehicle they were using at the time they were
apprehended. They used a motor vehicle to transport the illegal drug from one place to
another. (People v. Amago, et al., G.R. No. 227739, January 15, 2020).

TRANSPORTATION
 There is illegal transportation when the accused was caught checking at immigration gate of
the NAIA carrying shabu in her bag. Accused was apprehended inside the airport upon her
arrival from Ethiopia to Manila via Dubai. Shabu was found in her possession, contained in
seven (7) packs of vacuum-sealed aluminum foil and concealed in a laptop bag inside her
luggage. (People v. Noah, G.R. No. 228880, March 6, 2019).


TRANSPORTATION
 The crime is complete when it is shown that a person brings into the Philippines a regulated
drug without legal authority.
 The crime of transporting illegal drugs being malum prohibitum, the accused's intent, or
knowledge thereof need not be shown.
 It is undisputed that upon the entry of the accused into the Philippines from Hong Kong, she
was caught in possession of prohibited drugs found inside the bag which she disclaimed
ownership. (People v. Veloo, et al., G.R. No. 252154, March 24, 2021).

TRANSPORTATION
 Probable cause on search on moving vehicle
 Baterina case. Police officers had probable cause to conduct an extensive search of moving
vehicle in situations where the police officers had received a confidential report from informers
that a sizeable volume of marijuana would be transported along the route where the search
was conducted; and when the moving vehicle was stopped on the basis of the intelligence
information, there had emanated from a package inside the vehicle a distinctive smell of
marijuana.

TRANSPORTATION
 The police officers not just relied solely on the basis of the tipped information but also their personal
experience, i.e., when they were able to smell the peculiar odor of marijuana from the package inside
the vehicle which prompted them to do an extensive search. (People v. Baterina, G.R. No. 236259,
September 16, 2020).

TRANSPORTATION
 Sapla case (En Banc)
 Police operatives received a call from an informant that the accused was travelling on board a
passenger jitney with bricks of marijuana placed inside a sack. Based on the information, the
police operatives organized a team and set up a police check point. Thereafter, they received
a text message describing the offender and the shirt he was wearing.

TRANSPORTATION
 Based on said tip information, they flagged down a passenger jitney and searched the
persons on board. They subsequently arrested the person described by the informant.
 A solitary tip hardly suffices as probable cause that warrants the conduct of a warrantless
intrusive search and seizure. In determining whether there is probable cause that warrants an
extensive or intrusive warrantless search of a moving vehicle, bare suspicion is never
enough.

TRANSPORTATION
 The police merely adopted the unverified and unsubstantiated suspicion of another
person, i.e., the person who sent the text through the police hotline. Apart from the
information passed on to them, the police simply had no reason to reasonably believe that the
passenger vehicle contained an item, article or object which by law is subject to seizure and
destruction.
 To be sure, information coming from a complete and anonymous stranger, without the police
officers undertaking even a semblance of verification, on their own, cannot reasonably
produce probable cause that warrants the conduct of an intrusive search (

MAINTENANCE OF DRUG DEN
 A drug den is a lair or hideaway where prohibited or regulated drugs are used in any form or
are found. Its existence may be proved not only by direct evidence but may also be
established by proof of facts and circumstances, including evidence of the general reputation
of the house, or its general reputation among police officers. (Coronel, et al. v. People, G.R.
No. 214536, March 13, 2017)
 Element of regularity. The alleged drug den is a place where dangerous drugs are regularly
sold to and/or used by customers of the maintainer of the den.

MAINTENANCE OF DRUG DEN
 A single occurrence of illegal activity in the house of the accused cannot be considered as an
element of regularity to justify the house as a drug den.
 A single isolated occasion where one sees another person sniffing shabu inside a residence,
even if true, does not automatically convert that residence into a den. The element of
regularity is conspicuously absent. (People v. Andanar, et al., G.R. No. 246284, June 16,
2021).

POSSESSION OF DANGEROUS DRUGS
 Elements:
 That the accused is in possession of an item or object, which is identified to be a prohibited or
regulated drug;
 That such possession is not authorized by law; and
 That the accused freely and consciously possessed the drug.

 Opium
 Morphine
 Heroin
 Cocaine/Cocaine Hydrochloride
 Methamphetamine Hydrochloride
 Marijuana/Marijuana resin/oil
 Any dangerous drug ( Ecstacy, LSD, PMA, TMA, GHB)

 Kinds of possession
 Actual - when the drug is in the immediate possession or control of the accused.
 Constructive - 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.

 Constructive possession.
 The accused had possession of the two (2) bricks of cocaine recovered from behind the driver
seat of his vehicle upon his arrest. Though he did not have immediate physical possession of
these items, he had constructive possession thereof. Only he had dominion of these items.
The two (2) bricks of cocaine were under his control and disposal. (People v. SPO1 Estabilo,
G.R No. 252902, June 16, 2021).

 Actual - in the immediate possession or control of the accused;
 Constructive - 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.
 Ownership is not essential.

 Presumption of possession (Animus possidendi)
 Mere possession of a prohibited drug constitutes prima facie evidence of knowledge
or animus possidendi sufficient to convict an accused in the absence of any satisfactory
explanation.
 A critical element of the crime of illegal possession of dangerous drugs is the element of intent
to possess or animus possidendi. (Luna v. People, G.R. No. 231902, June 30, 2021).

 The accused knowingly, freely, intentionally, and consciously possessed the prohibited
articles in his person, or that animus possidendi is shown to be present together with his
possession or control of such article.
 It must be proven that the person in whose possession the drug specimen was found knew
that he/she was possessing illegal drugs. (Luna v. People, G.R. No. 231902, June 30, 2021)

 Therefore, to prosecute an accused for illegally possessing illegal drugs, it is not enough to
show that the accused knowingly and intentionally possessed the bag or receptacle that
contained illegal drugs. The prosecution must go beyond and provide evidence that the
accused knowingly, freely, consciously, and intentionally possessed illegal drugs. (Luna v.
People)

 The accused was with a woman at the Manila City Jail. When the jail guard became
suspicious on the woman, the guard called on the latter. But before she could approach the
guard, she handed her bag to the accused. This prompted the guard to also call the accused
who was adamant to heed the call to approach. When asked about the contents of the bag,
the accused turned to the woman and tried to give the bag back to her. The latter however
refused. The guard then grabbed the bag, opened it, and saw another bag containing
transparent bag with white crystalline substance. (People v. Quijano, G.R. No. 247558,
February 19, 2020).

 No animus possidendi
 A part-time driver who is engaged in the jewelry business, and occasionally drives for a
woman. After driving Sexy to the Sandiganbayan complex along Commonwealth Avenue, the
latter instructed Luna to proceed to Hap Chan Restaurant without her and to meet with a
certain Mike who would get Sexy's bag, which the latter placed on the backseat of the Toyota
Revo.

 Neither has it been indubitably established that the said bag and its contents were under the
effective control and dominion of Luna. It was Sexy who placed the bag at the backseat of the
vehicle. It was also Sexy who instructed Luna to immediately proceed to Hap Chan
Restaurant and allow a certain Mike to get the said bag. The person who effectively wielded
control over the bag was Sexy and not Luna (Luna, 2021)

 Possession necessarily included in sale.
 While there was an agreement of sale of illegal drugs between accused and the poseur-
buyer, accused was suddenly arrested before having accepted the consideration of the sale.
Hence, the offense committed is Illegal Possession of Dangerous Drugs. This is in keeping
with the settled rule that possession of dangerous drugs is necessarily included in the sale of
prohibited drugs (People v. Dejos, G.R No. 237423, October 12, 2020.

 Residue on paraphernalia is considered illegal possession of dangerous drug under Sec. 11
 BUT, it would be more in keeping with the intent of the law to file charges under Sec. 15
instead in order to rehabilitate first time offenders of drug use, provided that there is a positive
confirmatory test
 To file charges under Sec. 11 on the basis of residue alone would frustrate the objective of the
law to rehabilitate drug users. (Martinez, 2010)

POSSESSION DURING PARTIES
 Sec. 13. – Possession (a) during a party; or (b) at a social gathering or meeting; or (c) in the
proximate company of at least two (2) persons.
 Meaning of “in the proximate company of at least two (2) persons”
 “the accused or suspect plus at least two (2) others, who may or may not be in possession of
any dangerous drug.”


 The accused or suspect possessed illegal drugs in the proximate company of such persons
who may or may not be in possession of any dangerous drugs.
 It is not material that those persons may have in their possession of illegal drugs.
 What is material is that the accused was in the proximate of at least two persons when he
was caught possessing illegal drugs. (Plan, Jr., et al. v. People, G.R. No. 247589, August 24,
2020).

 It is not necessary that there was an ongoing pot session when they were caught in
possession of the dangerous drug.
 There is violation of Section 13 when the two (2) accused were caught in the proximate
company of three (3) persons while they were playing cara y cruz. (Plan, Jr., et al. v. People,)

 The imposition of the maximum penalties was expressly stated to be regardless of the
quantity and purity of such dangerous drugs. Under Section 11, the maximum penalty that
may be imposed upon any person who shall possess any dangerous drug without authority is
life imprisonment to death, and a fine ranging from Ꝑ500,000.00 to Ꝑ10,000,000.00 (Plan v.
People)

POSSESSION OF PARAPHERNALIA
 Possession or control by the accused of any equipment, apparatus or other paraphernalia fit
or intended for smoking, consuming, administering, injecting, ingesting, or introducing any
dangerous drug into the body; and such possession is not authorized by law.
 Aluminum foil, a tooter and disposable lighters, are considered drug paraphernalia.

 Aluminum tin foil, rolled tissue paper, and lighter
 Improvised burner
 Plastic straw
 Weighing scales
 Empty plastic sachets, blades, scissors – not paraphernalia

 Laboratory examination required
 While it is true that Section 12 of R.A. No. 9165 punishes the possession of drug
paraphernalia, it does not mean that forensic testing may completely be dispensed with. In
prosecutions involving Section 12 of R.A. No. 9165, forensic testing should thus still be done,
especially in cases where the allegation is that one of the syringes was used to inject nubain
and there were also confiscated empty bottles which could be confirmed to have contained
nubain through forensic testing.

 The requirement of testing is, as it should be, mandatory for prosecutions under Section 12
mostly involve the possession of ordinary household items such as foils, lighters, or syringes.
 Without a laboratory examination of the bottles and syringes confirming traces of illegal
substances, there exists sufficient and reasonable ground to believe, consistent with the
presumption of innocence, that the confiscated items were possessed for lawful purposes.
(Cuico v. People, G.R. No. 232293, December 9, 2020).

POSSESSION OF PARAPHERNALIA DURING PARTIES
 As malum prohibitum, the degree of participation of the offenders is not considered.
Conspiracy must be proved. Mere presence does not imply conspiracy
 All who perpetrated the prohibited act are penalized to the same extent. There is no principal
or accomplice or accessory to consider.
 The degree of participation of the offenders does not affect their liability, and the penalty on all
of them are the same whether they are principals or merely accomplices or accessories.

USE OF DANGEROUS DRUGS
 Two tests required.
 A conviction presupposes the prior conduct of an initial screening and a subsequent
confirmatory test for yielding positive results for illegal drug use.
 Two distinct drug tests are required: a screening test and a confirmatory test. A positive
screening test must be confirmed for it to be valid in a court of law. If only one test is
administered, then the accused must be acquitted. (People v. Lopez, G.R. No. 247974, July
13, 2020).

USE OF DANGEROUS DRUGS
 When drug test is mandatory?
 The drug test in Section 15 does not cover persons apprehended or arrested for any unlawful
act, but only for unlawful acts listed under Article II of R.A. No. 9165. A “person apprehended
or arrested" cannot literally mean any person apprehended or arrested for any crime.
 A drug test can be made upon persons who are apprehended or arrested for violation of
Article II of RA 9165 (unlawful acts enumerated thereunder). (Dela Cruz v. People, G.R. No.
200748, July 23, 2014).

PROBLEM AREAS IN PROSECUTING DRUG CASES
 Corpus delicti
 Chain of custody (Section 21, as amended)
 Marking, inventory, photographing
 Presence of insulating witnesses
 Saving clause
 Buy-bust operation

CORPUS DELICTI
 Corpus delicti (body of the crime) refers to the fact of the
commission of the crime charged or to the body or substance of
the crime.
 In ordinary criminal case, it means:
 that a crime has been actually committed; and
 a particular person is criminally responsible for the act.

CORPUS DELICTI
 Drug case is unique!
 Prosecution must:
 Prove the elements of the crime
 Compliance with the Chain of Custody Rule (under Section 21)
 The duty to prove the corpus delicti of the illegal sale or possession of dangerous drug is as
important as proving the elements of the crime itself.

CORPUS DELICTI IN DRUG CASE
 Under RA 9165 , the dangerous drug itself is the very corpus delicti of the violation of the law
prohibiting the illegal sale or possession of dangerous drug.
 In sale of dangerous drug, corpus delicti means:
 transaction or sale actually took place
 the presentation in court of the illicit drug in evidence

 It is of paramount importance
 Be proven with certitude that the substance bought during the buy-bust operation is exactly
the same substance offered in evidence.
 The illegal drug must be produced before the court as exhibit as the very same substance
recovered from the suspect.

 No corpus delicti
 When the prohibited substance subject of the prosecution is missing; or
 When substantial gaps in the chain of custody of the prohibited substance
 These give doubts about the authenticity of the prohibited substance presented as evidence
in court.

WHY CORPUS DELICTI IS IMPORTANT
 Narcotic substances are not readily identifiable; susceptible to alteration, tampering, or
contamination
 Paramount to establish that the identity and integrity of the seized drug in order to sustain a
conviction.
 The chain of custody, as a method of authentication, ensures that unnecessary doubts
involving the identity of seized drugs are removed.

CHAIN OF CUSTODY
 Meaning
 It refers to the duly recorded authorized movements and custody of the dangerous
drug/paraphernalia from its seizure, to its taking into custody by the apprehending officer, to
marking and inventory, to submission to forensic laboratory for laboratory examination, and to
the presentation to the court as evidence against the accused.

CHAIN OF CUSTODY
 Method of authenticating evidence
 Includes testimony about every link, from the moment the item was seized up to the time it is
offered in evidence,
 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
 For the purpose of preserving the integrity and evidentiary value of specimen

CHAIN OF CUSTODY
 A matter of substantive law
 It is not a technical rule that courts may opt to relax in their discretion.
 Administrative mechanism established by legislature
 To ensure an acceptable level of certainty with respect to the drugs' integrity and evidentiary
value
 Non-compliance of which creates doubt.

CHAIN OF CUSTODY
 Chain of custody is intended as protection against police abuses
 The purpose of Section 21 is to protect the accused from malicious imputations of guilt by
abusive police officers. (People v. Dimaano, G.R. No. 174481, 10 February 2016).
 The law has been crafted by Congress as safety precautions to address potential police
abuses, especially considering that the penalty imposed may be life imprisonment. (People v.
Gabunada, G.R. No. 242827, September 9, 2019)

FOUR LINKS IN THE CHAIN OF CUSTODY
 Four links
 First link: Marking of the drugs recovered from the accused by the apprehending
officer.
 Second link: Turn-over of the seized drugs by the apprehending officer to
investigating officer.
 Third link: Turnover by the investigating officer of the illegal drugs to forensic chemist.
 Fourth link: Turnover of the marked illegal drug seized by the forensic chemist to the
court.

FIRST LINK - MARKING
 Nature
 The placing by the apprehending officer or the poseur-buyer of his/her initials and signature
on the items seized.
 It is vital that the seized contraband be immediately marked because succeeding handlers of
the specimens will use the markings as reference
 The first and most crucial step in proving an unbroken chain of custody

FIRST LINK - MARKING
 Marking not mentioned in Sec. 21
 Marking is not found in R.A. No. 9165 and is different from the inventory-taking and
photography under Section 21 of the said law.
 Long before Congress passed R.A. No. 9165, however, this Court had consistently held that
failure of the authorities to immediately mark the seized drugs would cast reasonable doubt
on the authenticity of the corpus delicti (People v. Sabdula, G.R. No. 184758, April 21, 2014).

IMPORTANCE OF MARKING
 The starting point in the custodial link that succeeding handlers of the evidence will use as a
reference point
 Serves to separate the marked evidence from the corpus of all other similar or related
evidence from the time they are seized from the accused
 To prevent switching, planting or contamination of evidence

MARKING- HOW DONE
 Under 2010 PNP Manual on Anti-Illegal Drugs Operation and Investigation:
 The marking of the evidence with the initials of the apprehending officer/evidence custodian,
and
 Indicating the date, time and place the evidence was confiscated.

MARKING – HOW DONE
 Placed in an envelope or an evidence bag
 Signed by the handling officer and turned over to the next officer in the chain of custody
 Immediately after seizure
 Either at the place of arrest or at the nearest police station
 There is violation of the rule when the seized items were merely marked with the initials of the
apprehending officers without indicating the date, time, and place.

MARKING – WHEN AND WHERE DONE
 When - Immediately after seizure
 Where – at the place of arrest, or if not practical, at the nearest police station.
 “Immediate confiscation," however, has no exact definition; and in case there is such a
practical reason, the marking at the nearest police station falls within the concept of
immediate marking of the seized drugs.

MARKING NOT VALID
 Marking made after the accused was brought to hospital. During that length of time, the items
are easily susceptible to tampering, alteration or substitution. (People v. Balles, et al., G.R. No.
226143, November 21, 2018)
 Inconsistencies in the marking affect the chain of custody. (People v. Ameril, G.R. No. 222192,
March 13, 2019)
 Unexplained discrepancy in the markings of the seized dangerous drug, resulting in the
uncertainty (People v. Sanchez, G.R. No. 221458, September 5, 2018)

MARKING NOT VALID
 Fear of the arresting officer that accused friends in the area would cause trouble is not
sufficient justification. (People v. Catinguel, G.R. No. 229205, March 6, 2019).
 Islamophobia, the hatred against the Islamic community, can never be a valid reason to justify
an officer's failure to comply with Section 21 of R.A. No. 9165. (People v. Abdulah, G.R. No.
243941, March 11, 2020).

MARKING NOT VALID
Security reason
 “Immediate physical inventory and photograph of the
confiscated items at the place of arrest may be excused in
instances when the safety and security of the apprehending
officers and the witnesses required by law or of the items
seized are threatened by immediate or extreme danger such
as retaliatory action of those who have the resources and
capability to mount a counter-assault."

MARKING NOT VALID
 Such deviation must be explained by the police operatives. Standing alone, such bare
allegation should be rejected. What exactly these "security reasons" were and why the place
of arrest was considered to be risky for marking and inventory or taking of photographs - are
material details which the arresting officers must explain. (People v. Kasan, G.R. No. 238334,
July 3, 2019 citing People v. Lim, G.R. No. 231989, September 4, 2018).

MARKING NOT VALID
 Delay in marking for 10 minutes after the arrest of the accused creates doubt. During this ten
(10)-minute interval, the corpus delicti remained in the police officer’s pocket without any way
of differentiating it from other drug items that may have been in his possession, too, at that
time. This cast serious doubt on the identity of the item that was later marked and inventoried.
(People v. Garcia, G.R. No. 230983, September 4, 2019)

MARKING NOT VALID
 Inconvenience is not a reason to deviate from the rules.
 Compliance with the prescribed procedures in authenticating the seized drug was not
imposed for anyone's convenience, least of all the arresting officers. The short distance
between the place of arrest and the police station certainly does not excuse the buy-bust
team's non-compliance with the rule on immediate marking.
 Transporting the drug all the way from the place of arrest to the police station rendered the
seized drug susceptible to tampering or switching. (People v. Bumanglag, G.R. No. 228884,
August 19, 2019)

INVENTORY AND PHOTOGRAPHING
 Immediately after seizure and confiscation, the apprehending team having initial custody and
control of the drug (1) physically inventory; and (2) photograph the same; (3) 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;
 any elected public official; AND
 a representative from the media; OR
 a representative of the National Prosecution Service (People v. Lim, 2018)

INVENTORY AND PHOTOGRAPHING WHEN AND WHERE TO BE
MADE
 Immediately after seizure and confiscation means that the physical inventory and
photographing of the drugs were intended by the law to be made immediately after, or at the
place of apprehension.
 When not practicable, the inventory and photographing can be done as soon as the buy-bust
team reaches the nearest police station or the nearest office of the apprehending officer/team.

INVENTORY AND PHOTOGRAPHING WHERE TO BE MADE
 If by virtue of a warrant,
 at the place where the search warrant is served, or
 If in case of a warrantless seizures (e.g. buy-bust),
 At the place of arrest or at the nearest office of the apprehending officer/team, whichever is
practicable.

CASES WHERE INVENTORY IS NOT VALID
 The place, barangay hall, where the witnesses were "called-in" was improper.
 The rules require the inventory to be conducted at the place of the arrest or, if impracticable,
at the nearest police station.
 However, inventory made at barangay hall was valid where the buy-bust operation was
conducted at a remote place near bridge and at 9:00 P.M.

CASES WHERE INVENTORY IS NOT VALID
 Inventory not signed and had wrong date
 There is non-compliance with Section 21 if the Inventory/Receipt of Property Seized was
already prepared when the witnesses arrived and they merely signed it after comparing the
seized items with the inventory. This undermines the purpose of requiring the presence of the
witnesses, which is to prevent switching, planting, or contamination of evidence. (People v.
Aguilar, G.R. No. 243793, November 27, 2019)

PHOTOGRAPHING
 Photographing must be made immediately after seizure and at the place of
apprehension. (People v. Garcia, G.R. No. 215344, June 10, 2019)
 Failure to take photograph is fatal. The photographs were intended by law as another
means to confirm the chain of custody of the dangerous drugs. (People v. Seguiente,
G.R. No. 218253, June 20, 2018)
 Taking of photographs without the presence of witnesses is not proper. Photographs
taken before the arrival of the witnesses are defective and constitutes gap in the
chain of custody. (Anyayahan v. People, G.R. No. 229787, June 20, 2018).

PHOTOGRAPHING
 What the law requires is a photograph of the seized item. Failure to present the photograph
of the seized sachet as evidence is a fatal break in the chain of custody. (People v. Dela
Torre, G.R. No. 225789, July 29, 2019)
 On photographing, the reason that there was no available camera is flimsy. In the 1999
Philippine National Police Drug Enforcement Manual, the buy-bust team is required to bring a
camera in the conduct of buy-bust operations. (People v. Sood, G.R. No. 227394, June 6,
2018).

DISCREPANCY
 Discrepancies cannot be regarded as mere clerical errors. Gross irregularities like these
cannot be downplayed as mere clerical errors. (Veriňo v. People, G.R. No. 226710, June 19,
2019)
 Discrepancy in the description in inventory made by the apprehending officer and chemistry
report made by the forensic chemist is fatal. (People v. Veedor, G.R. No. 223535, June 25,
2018).
 Discrepancy in the number of specimen in the inventory and photograph/information, if
unexplained, fatal. (People v. Lumaya, et al., G.R. No. 231983, March 7, 2018).

DISCREPANCY
 Discrepancy as regards the time in the Coordination Form and testimony of the operative is
fatal. Discrepancy and failure to indicate the name of the accused as the target in the Pre-
Operation Report is fatal. (Veriňo v. People, G.R. No. 226710, June 19, 2019).
 The difference between the drugs that were supposedly bought and the drugs that were
actually bought is irrelevant. The drug bought was supposed to be shabu when it was actually
an ephedrine. (People v. Siu Ming Tat, et al., G.R. No. 246577, July 13, 2020).

PRESENCE OF INSULATING WITNESSES
 It is mandatory.
 Purpose:
 To protect against the possibility of planting, contamination, or loss of the seized drug
 To avoid the evils of switching, "planting" or contamination of the evidence that had tainted
the buy-busts conducted under RA No. 6425

PRESENCE OF INSULATING WITNESSES
 Under Section 21 (as amended by RA 10640, July, 2014), the insulating witnesses are:
 Any elected public official; and
 Media representative; or
 Representative from the NPS.
 The suspect, his counsel, or representative

INSULATING WITNESSES: LIST IS EXCLUSIVE
 A court interpreter of MCTC is not authorized to witness the inventory
 Barangay tanods are not elected public officials
 A representative of the National Prosecution Service of the DOJ is anyone from its
employees.
 A security guard of a mall who was called to witness the inventory is not valid.

WHEN WITNESSES MUST BE PRESENT
 All witnesses must be present not only during the inventory but also during arrest/confiscation
 Witnesses should already be physically present at the time of the conduct of the inventory of
the seized items.
 It is at this point in which the presence of the three witnesses is most needed (People v.
Guerrero, G.R. No. 228881, February 6, 2019 citing People v. Tomawis, G.R. No. 228890, April 18,
2018)

 The two-witness rule is inseparable from the conduct of inventory and photography. Since the
physical inventory and photographing of the seized items must, as a general rule, be done at
the place of seizure, it follows that the two insulating witnesses whose presence are required
during the inventory and photographing must also be in or within the area of the site of
seizure. (Taňamor v. People, G.R. No. 228132, March 11, 2020).

 Reason that lives of witnesses would be put in jeopardy as they are not trained to protect
themselves is not acceptable. They are necessary to insulate the apprehension and
incrimination proceedings from any taint of illegitimacy or irregularity. (People v. Baculio, G.R.
No. 233802, November 20, 2019).
 There is gap in the chain when the buy-bust team only contacted the required witnesses after
the operation was conducted and when they were already at the police station. It was a mere
afterthought. (People v. Fulinara, G.R. No. 237975, June 19, 2019)

WITNESSES
 Representative from the National Prosecution Service. Sec. 1 (A.1.6) of the chain of custody
IRR explicitly provides that a representative of the National Prosecution Service of the DOJ is
anyone from its employees. (People v. Saragena, G.R. No. 210677, August 23, 2017)
 R.A. No. 9165 does not require that the DOJ representative be from the DOJ itself but may
come from any of its attached agencies, including the Bureau of Immigration (People v.
Veloo, et al., G.R. No. 252154, March 24, 2021).

CALLING IN OF WITNESSES
 The practice of police operatives of not bringing to the intended place of arrest the witnesses
and "calling them in" to the place of inventory to witness the inventory and photographing of
the drugs only after the buy-bust operation has already been finished - does not achieve the
purpose of the law in having these witnesses prevent or insulate against the planting of drugs.
 If the witness arrived only after the marking and inventory, he was unable to witness how the
alleged sachets of dangerous drugs were seized.

CALLING IN OF WITNESSES
 This requirement can easily be complied with by the buy-bust team considering that the buy-
bust operation is, by its nature, a planned activity.
 A buy-bust team normally has enough time to gather and bring with it the said witnesses.
 If one is present during the inventory and the other is “called in” to sign the inventory receipt,
then the inventory is defective.

WHEN WITNESSES MAY BE DISPENSED WITH
 Media representatives are not available at that time or
 Police operatives had no time to alert the media due to the immediacy of the operation,
especially if it is done in more remote areas
 The police operatives, with the same reason, failed to find an available representative of the
National Prosecution Service

 Due to time constraints brought about by the urgency of the operation to be undertaken and in
order to comply with the provisions of Article 125 of the Revised Penal Code
 Their attendance was impossible because the place of arrest was a remote area
 Their safety during the inventory and photograph of the seized drugs was threatened by an
immediate retaliatory action

 The elected official themselves were involved in the punishable acts sought to be
apprehended
 Time is of the essence as when there is possibility of the escape of the offenders

REQUISITES JUSTIFYING ABSENCE OF WITNESSES
 The following are required:
 The absence must be alleged and proved citing the justifiable reason
 That earnest efforts were employed in contacting the representatives

EARNEST EFFORTS TO SECURE WITNESSES
 A sheer statement that representatives were unavailable without an explanation
 Whether serious attempts were employed to look for other representatives
 Mere statements of unavailability, absent actual serious attempts to contact the
required witnesses are unacceptable
 "the team exerted efforts to contact any representative from the Department of
Justice but to no avail" is NOT sufficient

EARNEST EFFORTS TO SECURE WITNESSES
 Reason that the contact in media changed his number is NOT justifiable.
 That no representatives from the media and the DOJ were available despite their best efforts
to contact them and that there was heavy downpour at the time and they stayed at the crime
scene for an hour to quickly conduct the physical inventory and photograph-taking of the
seized items before proceeding to the police station is a VALID justification

HOW EXPLANATION IS MADE
 Apprehending team must explain:
 The non-compliance is on justifiable grounds; and
 The integrity and the evidentiary value of the seized items are properly preserved.
 Evidence must show that the illegal drug presented in court is the same illegal drug actually
recovered from the accused.

REFUSAL OF WITNESS TO SIGN
 The refusal of the media representatives to sign the inventory of the seized items does not
automatically impair the integrity of the chain of custody
 The refusal of the members of the media to sign the inventory of the seized items can be
considered by the Court as a valid ground to relax the requirement.

SAVING MECHANISM
 As a rule, chain of custody rules must be strictly complied with.
 Exception:
 Non-compliance is not fatal as long as there is (a) justifiable ground and (b) the integrity and
evidentiary value of specimen are preserved.

REQUISITES FOR THE SAVING MECHANISM
 Prosecution, during trial, must:
 recognize any lapse on the part of the police officers; and
 be able to justify the same
 Prosecution still needs to satisfactorily prove that: (a) there is justifiable ground for non-
compliance; and (b) the integrity and evidentiary value of the seized items are properly
preserved

SECOND LINK : TURN OVER TO INVESTIGATING OFFICER
 The transfer of the seized drugs by the apprehending officer to the investigating officer
 It is a necessary step in the chain of custody because it will be the investigating officer who
shall conduct the proper investigation and prepare the necessary documents for the
developing criminal case

SECOND LINK : TURN OVER TO
INVESTIGATING OFFICER
 The apprehending officer kept the shabu from the time of confiscation until the time he
transferred them to the forensic chemist constituted a gap in the chain of custody
 The seizing officer held the marijuana in his possession and did not turn over the same to the
investigator constituted a gap in the chain of custody

SECOND LINK : TURN OVER TO INVESTIGATING OFFICER
 Exception: If the apprehending officer was the same investigating officer, the requirement as
to the turning-over to the investigating officer can be dispensed with. (People v. Magalong,
G.R. No. 231838, March 4, 2019)
 When the same seizing officer was the one who marked and inventoried the item and that he
immediately submitted the same to the forensic chemist . (People v. Macaspac, G.R. No.
246165, November 28, 2019)

THIRD LINK: TURN TO FORENSIC CHEMIST
 The illegal drug is delivered to the forensic chemist.
 Once the seized drugs arrive at the forensic laboratory, it will be the laboratory technician who
will test and verify the nature of the substance
 There is doubt if the drug is submitted to the forensic on the next day without explaining how
the drug is preserved.

THIRD LINK: TURN OVER TO FORENSIC CHEMIST
 The identities of these persons must be revealed:
 the person who had custody of the seized items after its turnover,
 the person who turned over the items to Forensic Chemist, and
 the person who had custody after examination by the forensic chemist and before they
were presented in court

THIRD LINK: TURN OVER TO FORENSIC CHEMIST
 Forensic chemist must identify the person who turned over the specimen. (People v.
Guillermo, G.R. No. 229515, November 27, 2019.
 The investigator who turned over the specimen to the forensic chemist must be presented as
witness. The investigator was not presented to testify how he handled the dangerous drug
from the time it was turned over to him by the arresting officers up to the time he endorsed the
same for chemical examination. The third link has been broken. (Largo v. People, G.R. No.
201293, June 19, 2019).

FOURTH LINK: TURN OVER TO COURT
 Testimony of forensic chemist which may be stipulated upon
 (1) that he received the seized article as marked, properly sealed and intact; (2) that he
resealed it after examination of the content; and (3) that he placed his own marking on the
same to ensure that it could not be tampered pending trial.
 In case the parties stipulate, they should stipulate that the latter would have testified that he
took the precautionary steps mentioned. (People v. Ubungen, G.R. No. 225497, July 23, 2018)

 Absent these required stipulations, the fourth link of the chain of custody could not be
reasonably established (People v. Rivera, et al., G.R. No. 252886, March 15, 2021)
 Although the testimony of forensic chemist is subject of stipulations, it must not dispense with
the manner how the specimen is handled after examination. Absent any testimony regarding
the management, storage, and preservation of the illegal drug allegedly seized herein after its
qualitative examination, the fourth link could not be reasonably established. (People v.
Andanar, et al., G.R. No. 246284, June 16, 2021)

 Evidence must be adduced how the chemist took precautionary steps in preserving the
integrity and evidentiary value of the seized drug while it remained in her possession,
especially when she turned over the illegal drugs to the alleged evidence custodian and
prior to its presentation in court. (People v. Salmeron, G.R. No. 246477, October 2, 2019)
 Evidence custodian must be disclosed. There was no concrete evidence as to whom the
forensic chemist delivered the seized item before its presentation in court. From the time
of the completion of the laboratory examination up to the time the confiscated shabu was
offered and marked as exhibit during the preliminary conference, it was not indicated in
the record who was the custodian thereof. (People v. Balubal, G.R. No. 234033, July 30,
2018)

 Failure to prove who brought the specimen to the court is fatal. The fourth link was also
broken because of the absence of the testimony from any prosecution witness on how the
drug items were brought from the crime laboratory and submitted in evidence to the court
below. The prosecution's failure to show who brought the seized items before the trial court
was considered a serious breach of the chain-of-custody rule. (People v. Garcia, G.R. No.
218126, July 10, 2019)

 Prosecutor’s office is not part of the chain of custody. The City Prosecutor's Office has no
authority to take custody of dangerous drugs before they are brought before the court.
(People v. Suarez, G.R. No. 223141, June 6, 2018)
 There is a gap in the chain of custody when it was the prosecutor who presented the
specimen to court. (People v. Siaton, G.R. No. 208353, July 4, 2016)

ROMY LIM’S WARNINGS
TO POLICE
 In the sworn statements/affidavits, the apprehending/seizing officers must state their
compliance with the requirements of Section 21 (1) of R.A. No. 9165, as amended, and its
IRR.
 In case of non-observance of the provision, the apprehending/seizing officers must state the
justification or explanation therefor, as well as the steps taken in order to preserve the
integrity and evidentiary value of the seized/confiscated items.

TO PROSECUTORS
 If there is no justification or explanation expressly declared in the sworn statements or
affidavits, the investigating fiscal must not immediately file the case before the court. Instead,
he or she must refer the case for further preliminary investigation in order to determine the
(non) existence of probable cause.

TO JUDGES
 If the investigating fiscal filed the case despite such absence, the court may exercise its
discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the
case outright for lack of probable cause in accordance with Section 5, Rule 112, Rules of
Court.
 People v. Lim, G.R. No. 231989, September 4, 2018 (En Banc)

NON-COMPLIANCE WITH CHAIN OF CUSTODY RULE
 Non-compliance with these requirements is ground for administrative sanctions and criminal
liabilities.
 The requirements of marking the seized items, conduct of inventory and taking photograph in
the presence of a representative from the media or the DOJ and a local elective official, are
police investigation procedures which call for administrative sanctions in case of non-
compliance.

 Violation of such procedure may even merit penalty under R.A. No. 9165, particularly Section
29 (Planting of Evidence) and Section 32 (Liability to a Person Violating Any Regulation
Issued by the Board) (People v. Sipin, G.R. No. 225290, June 6, 2018)

 Breaches of the procedure outlined in Section 21 committed by the police officers, left
unacknowledged and unexplained by the State, militate against a finding of guilt beyond
reasonable doubt against the accused as the integrity and evidentiary value of the corpus
delicti have been compromised. (People v. Claudel, G.R. No. 219852, April 3, 2019)

EXHORTATION TO PROSECUTORS
 The Court exhorts the prosecutors to diligently discharge their onus to prove compliance with
the provisions of Section 21 of RA 9165, as amended, and its IRR, which is fundamental in
preserving the integrity and evidentiary value of the corpus delicti.

 To the mind of the Court, the procedure outlined in Section 21 is straightforward and easy to
comply with. In the presentation of evidence to prove compliance therewith, the prosecutors
are enjoined to recognize any deviation from the prescribed procedure and provide the
explanation therefor as dictated by available evidence.

 Compliance with Section 21 being integral to every conviction, the appellate court, this Court
included, is at liberty to review the records of the case to satisfy itself that the required proof
has been adduced by the prosecution whether the accused has raised, before the trial or
appellate court, any issue of non-compliance. If deviations are observed and no justifiable
reasons are provided, the conviction must be overturned, and the innocence of the accused
affirmed.
 (People v. Otico, G.R. No. 231133, June 6, 2018)

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