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. does not 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 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, L-28547, 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 non-existent 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 abovementioned 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 ACCUSED-PETITIONER?

1. if the accused, prior to the promulgation of decision of conviction is out on bail, he may be allowed on temporary liberty under his bail filed in said case; 2. if he is under detention, upon motion, he may be allowed temporary liberty, if he cannot post a bond, on 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;

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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 11

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

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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 a term of imprisonment or probation shall be filed with application shall be deemed whether the sentence imposes a fine only. An application for the trial court. The filing of the 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

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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

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

ORDER DENYING PROBATION NOT APPEALABLE, REMEDY CERTIORARI

Although an order denying probation is not appealable, the accused may file a motion for Certiorari from said order (Heirs of Francisco Abueg v. C.A., 219 SCRA 78)
EFFECT OF FILING PETITION FOR PROBATION, WAIVER OF RIGHT TO APPEAL AND FINALITY OF JUDGEMENT

A judgment of conviction becomes final when the accused files a petition for probation. However, the judgement is not executory until the petition for probation is resolved. The filing of the petition for probation is a waiver by the accused of his right to appeal the judgement of conviction (Heirs of Francisco Abueg v. C.A., supra).
MULTIPLE CONVICTIONS IN SEVERAL CASES PROBATIONABLE IF PENALTY FOR EACH CONVICTION IS PROBATIONABLE

Evidently, the law does not intend to sum up the penalties imposed but to take each penalty, separately and distinctly with the others. Consequently, even if petitioner was supposed to have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime committed on each date of each case, as alleged in the information(s)," and in each of the four (4) informations, he was charged with having defamed the four (4) private complainants on four (4) different, separate days, he was still eligible for probation, as each prison term imposed on petitioner was probationable. (Francisco v. CA; 4/16/95)

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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]." 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 16

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.

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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 TERMINATION, ORDER OF COURT REQUIRED IS NOT

The mere expiration of the period for probation does not, ipso facto, terminate the probation. Probation is not coterminus 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 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.

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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 (AntiFencing Law) is the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows or should be known to him, or to have been derived from the proceeds of the crime of robbery or theft. (Dizon-Pamintuan vs. People, GR 111426, 11 July 94).
BRIEF HISTORY OF PD 1612 OR THE ANTI-FENCING LAW

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

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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 20

the accessory penalty pertaining thereto provided in the Revised Penal Code shall also be imposed. b. The penalty of prision correccional in its medium and maximum periods, if the value of the property robbed or stolen is more than 6,000 pesos but not exceeding 12, 000 pesos; c. The penalty of prision correccional in its minimum and medium periods, if the value of the property involved is more than 200 pesos but not exceeding 6,000 pesos; d. The penalty of arresto mayor in its medium period to prision correccional in its minimum period, if the value of the property involved is over 50 but not exceeding 200 pesos; e. The penalty of arresto mayor in its medium period if such value is over five (5) pesos but not exceeding 50 pesos. f. The penalty of arresto mayor in its minimum period if such value does not exceed 5 pesos.
RULES REGARDING BUY AND SELL PARTICULARLY SECOND HAND GOODS OF 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.

21

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

22

c. deposited.

Place

where

the

articles

are

presently

The Station Commander may, require the submission of an affidavit accompanied by other documents showing proof of legitimacy of acquisition. 2. Those who wish to secure the permit/clearance, shall file an application with the Station Commander concerned, which states: a. name, address and other pertinent circumstances b. article to be sold or offered for sale to the public and the name and address of the unlicensed dealer or supplier from whom such article was acquired. c. Include the receipt or document showing proof of legitimacy of acquisition. 3. The Station Commander shall examine the documents attached to the application and may require the presentation of other additional documents, if necessary, to show satisfactory proof of the legitimacy of acquisition of the article, subject to the following conditions: a. if the Station Commander is not satisfied with the proof of legitimacy of acquisition, he shall cause the publication of the notice, at the expense of the one seeking clearance/permit, in a newspaper of general circulation for two consecutive days, stating: articles acquired from unlicensed dealer or supplier the names and addresses of the persons from whom they were acquired that such articles are to be sold or offered for sale to the public at the address of the store, establishment or other entity seeking the clearance/permit. 4. If there are no newspapers in general circulation, the party seeking the clearance/permit shall, post a notice daily for one week on the bulletin board of the municipal building of the town where the store, firm, establishment or entity is located or, in the case of an individual, where the articles in his possession are to be sold or offered for sale.

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5. If after 15 days, upon expiration of the period of publication or of the notice, no claim is made to any of the articles enumerated in the notice, the Station Commander shall issue the clearance or permit sought. 6. If before expiration of the same period for the publication of the notice or its posting, it shall appear that any of the articles in question is stolen property, the Station Commander shall hold the article in restraint as evidence in any appropriate case to be filed. Articles held in restraint shall kept and disposed of as the circumstances of each case permit. In any case it shall be the duty of the Station Commander concerned to advise/notify the Commission on Audit of the case and comply with such procedure as may be proper under applicable existing laws, rules and regulations. 7. The Station Commander shall, within seventy-two (72) hours from receipt of the application, act thereon by either issuing the clearance/permit requested or denying the same. Denial of an application shall be in writing and shall state in brief the reason/s thereof. 8. Any party not satisfied with the decision of the Station Commander may appeal the same within 10 days to the proper INP (now PNP) District Superintendent and further to the INP (now PNP) Director. The decision of the Director can still be appealed top the Director-General, within 10 days, whose decision may be appealed with the Minister (now Secretary) of National Defense, within 15 days, which decision is final.
PRESUMPTION 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;

24

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 25

because of the fact that Crisilita was willing to part with a considerable number of jewelry at measly sum, and this should have apprised Norma of the possibility that they were stolen goods. The approximate total value of the jewelry were held to be at P20,000.00, and Norma having bought it from Crisilita for only P2,700. The court also considered the fact that Norma engage in the business of buying and selling gold and silver, which business is very well exposed to the practice of fencing. This requires more than ordinary case and caution in dealing with customers. As noted by the trial court: ". . . the Court is not inclined to accept the accused's theory of buying in good faith and disclaimer of ever seeing, much more, buying the other articles. Human experience belies her allegations as no businessman or woman at that, would let go of such opportunities for a clean profit at the expense of innocent owners. The Court in convicting Ernesto Dunlao Sr., noted that the stolen articles composed of farrowing crates and G.I. pipes were found displayed on petitioner's shelves inside his compound. (Dunalao, Sr. v. CA, 08/22/96) In the case of People v. Muere (G.R.12902, 10/18/94), the third element was not proven. This case involves the selling of alleged stolen Kenwood Stereo Unit in the store Danvir Trading, owned by the spouses Muere. The store is engaged in buying and selling of second hand merchandise located at Pasay Road, Makati. The said stereo was bought from Wynn's Audio, an existing establishment. The court held that there is no proof that the spouses Muere, had knowledge of the fact that the stereo was stolen. The spouses Muere purchased the stereo from a known merchant and the unit is displayed for sale in their store. These actions are not indicative of a conduct of a guilty person. On the same vein, the third element did not exist in the case of D.M. Consunji, Inc. (Consunji v. Esguerra, 07/30/96) where the subject of the court action are the alleged stolen phelonic plywood owned by D.M. Consunji, Inc., later found to be in the premises of MC Industrial Sales and Seato trading Company, owned respectively by Eduardo Ching and the spouses Sy. Respondents presented sales receipts covering their purchase of the items from Paramount Industrial, which

26

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 AntiFencing 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

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. 27

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 28

last May 8, 1995 elections because of the fact of the disqualification under Sec. 40 of the Local Government Code, of persons running for elective position -"Sec. 40 Disqualifications - (a) Those sentenced by final judgement for an offense involving moral turpitude..." Dela Torre was disqualified because of his prior conviction of the crime of fencing wherein he admitted all the elements of the crime of fencing.
ESSENCE OF VIOLATION OF PD 1612, SEC. 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,

29

14 Phils. 134) immaterial.

When the act is prohibited by law, intent is

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)
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:

30

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.

31

DUTY OF THE DRAWEE BANK

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

The drawee bank has not only the duty to indicate that the drawer stopped the payment and the reason for the stop payment. The drawee bank is further obligated to state whether the drawer of the check has sufficient funds in the bank or not.
AGREEMENT OF PARTIES REGARDING THE CHECK IS NOT A DEFENSE

In the case of People vs Nitafan, 215 SCRA, the agreement of the parties in respect to the issuance of the check is inconsequential or will not affect the violation of BP 22, if the check is presented to the bank and the same was dishonored due to insufficiency of funds.
CHECKS ISSUED IN PAYMENT OF INSTALLMENT

Checks issued in payment for installment covered by promissory note and said checks bounced, the drawer is liable if the checks were drawn against insufficient funds, especially that the drawer, upon signing of the promissory note, closed his account. Said check is still with consideration. (Caram Resources v. Contreras) In this case, the Judge was even held administratively liable.
CHECK DRAWN AGAINST A DOLLAR ACCOUNT. RULE:

32

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 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

33

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 declared:

this Court

"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 presentment; and, (c) the check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or 34

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

35

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 estafa if a check is issued in payment of a preexisting obligation, the Court of Appeals pointed out that the petitioner obviously failed to distinguish a violation of B.P. Blg. 22 from estafa under Article 315 (2) [d] of the Revised Penal Code. It further stressed that B.P. Blg. 22 applies even in cases where dishonored checks were issued as a guarantee or for deposit only, for it makes no distinction as to whether the checks within its contemplation are issued in payment of an obligation or merely to guarantee the said obligation and the history of its enactment evinces the definite legislative intent to make the prohibition all-embracing. (Ibasco vs CA,
9/5/96) ACTUAL KNOWLEDGE OF INSUFFICIENCY OF FUNDS ESSENTIAL IN BP 22

Knowledge of insufficiency of funds or credit in the drawee bank for the payment of a check upon its presentment is an essential element of the offense. There is a prima facie presumption of the existence of this element

36

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)

37

THE PENALTY OF IMPRISONMENT IN CASES VIOLATION OF B.P. 22 WAS NOT DELETED.

OF

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

38

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

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

39

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

40

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.

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.

41

(b) Directly or indirectly requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other person, in connection with any contract or transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law. (c) Directly or indirectly requesting or receiving any gift, present or other pecuniary or material benefit, for himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or obtained, or will secure or obtain, any Government permit or license, in consideration for the help given or to be given, without prejudice to Section thirteen of this Act. (d) Accepting or having any member of his family accept employment in a private enterprise which has pending official business with him during the pendency thereof or within one year after its termination. (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. (f ) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for the purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party. (g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby. (h) Director or indirectly having financing or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his 42

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.

43

MEANING OF CAUSING UNDUE INJURY

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

44

corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx

(e). Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions.
VIOLATION OF SECTION 3 (E) OF RA 3019 REQUIRES PROOF OF THE FOLLOWING FACTS, VIZ:

a. the accused is a public officer discharging administrative or official functions or private persons charged in conspiracy with them; b. the public officer committed the prohibited act during the performance of his official duty or in relation to his public position; c. the public officer acted with manifest partiality evident bad faith or gross, inexcusable negligence; and d. his action caused undue injury to the government or any private party, or gave any party any unwarranted benefit, advantage or preference to such parties.
CAUSING UNDUE INJURY UNDER SEC. 3, LETTER (e) OF RA 3019. MEANING.

Section 3 enumerates in eleven subsections the corrupt practices of any public officer declared unlawful. Its reference to any public officer is without distinction or qualification and it specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last inclusion of officers and employees of offices or government corporations which, under the ordinary concept of public officer may not come within the term. It is a strained construction of the 45

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 abovedescribed 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

46

remove him therefor. The foregoing rule, however, finds no application to criminal cases . . ." Likewise, it was specifically declared in the case of Ingco vs. Sanchez, G.R. No. L-23220, 18 December 1967, 21 SCRA 1292, that "The ruling, therefore, that 'when the people have elected a man to office it must be assumed that they did this with knowledge of his life and character and that they disregarded or forgave his faults or misconduct if he had been guilty of any' refers only to an action for removal from office and does not apply to a criminal case" Clearly, even if the alleged unlawful appointment was committed during Maghirang's first term as barangay chairman and the Motion for his suspension was only filed in 1995 during his second term, his re-election is not a bar to his suspension as the suspension sought for is in connection with a criminal case. (Conducto v. Monzon; A.M. No. MTJ98-1147, 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

47

include reelection to office as one of them, at least insofar as a public officer is concerned. Also, under the Constitution, it is only the President who may grant the pardon of a criminal offense. (Conducto v. Monzon; A.M. No. MTJ-98-1147, July 2, 1998)
PRE-CONDITION OF SUSPENSION (PREVENTIVE) UNDER SEC. 13, RA 3019

It is mandatory for the court to place under preventive suspension a public officer accused before it. Imposition of suspension, however, is not automatic or self-operative. A pre-condition thereof is the existence of a valid information, determined at a pre-suspension hearing. Such a hearing is in accord with the spirit of the law, considering the serious and far-reaching consequences of a suspension of a public official even before his conviction, and the demands of public interest for a speedy determination of the issues involved in the case. The purpose of the pre-suspension hearing is basically to determine the validity of the information and thereby furnish the court with a basis to either suspend the accused and proceed with the trial on the merits of the case, or refuse suspension of the latter and dismiss the case, or correct any part of the proceeding which impairs its validity. The accused should be given adequate opportunity to challenge the validity or regularity of the criminal proceedings against him; e.g. that he has not been afforded the right to due preliminary investigation; that the acts imputed to him do not constitute a specific crime (under R.A. 3019 or the Revised Penal Code) warranting his mandatory suspension from office under Section 13 of the Act; or that the information is subject to quashal on any of the grounds set out in Rule 117 of the Rules of Court. But once a proper determination of the validity of the information has been made, it becomes the ministerial duty of the court to forthwith issue the order of 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

48

"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 49

prosecution for violation of the Anti-Graft Act or for bribery under a valid information requires at the same time that the hearing be expeditious, and not unduly protracted such as to thwart the prompt suspension envisioned by the Act. Hence, if the trial court, say, finds the ground alleged in the quashal motion not to be indubitable, then it shall be called upon to issue the suspension order upon its upholding the validity of the information and setting the same for trial on the merits.' (Segovia v. Sandiganbayan)

WHEN MAY A PUBLIC OFFICER BE LIABLE FOR CAUSING UNDUE INJURY UNDER SEC. 3(e) of RA 3019

xxx

xxx

xxx

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

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MEANING OF BAD FAITH UNDER SECTION 3(e) OF RA 3019

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

WHEN OFFENDER IS NOT LIABLE UNDER SEC. 3(e) BUT UNDER SEC. (f) OF RA 3019

It would appear that petitioner's failure or refusal to act on the complainant's vouchers, or the delay in his acting on them more properly falls under Sec. 3[f]:
"(f) Neglecting or refusing, after due demand or request, without sufficient justification, to act within a reasonable time on any matter pending before him for the purpose of obtaining, directly or indirectly, from any person interested in the matter some pecuniary or material benefit or advantage, or for purpose of favoring his own interest or giving undue advantage in favor of or discriminating against any other interested party."

51

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; 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."

3)

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.

Sandiganbayan)
SUSPPENSION (PREVENTIVE) OF LOCAL OFFICIALS SHALL ONLY BE FOR 60 DAYS

(Llorente

v.

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

52

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

After a careful review of the facts and circumstances of this case, we are constrained to hold that the inordinate delay in terminating the preliminary investigation and filing the information in the instant case is violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of the foregoing, we find it unnecessary to rule on the other issues raised by petitioner. (Tatad v. Sandiganbayan) SECTION 3(B), RA 3019 ELEMENTS 1. The offender is a public officer 2. Who requested or received a gift, a present, a share, a percentage, or a benefit 3. On behalf of the offender or any other person 4. In connection with a contract or transaction with the government 5. 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

53

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)
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

54

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 55

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 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 56

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. 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 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) 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

57

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

58

The trial court has thus held incorrectly in considering appellant, who is legally married to Roxan's natural grandmother, as among those named in the enumeration. Appellant is merely a step-grandparent who obviously is neither an "ascendant" nor a "step-parent" of the victim. In the recent case of People vs. Atop, 24 the Court rejected the application of the mandatory death penalty to the rape of a 12-year old victim by the common-law husband of the girl's grandmother. The Court said:
"It is a basic rule of statutory construction that penal statutes are to be liberally construed in favor of the accused. Court's must not bring cases within the provision of a law which are not clearly embraced by it. No act can be pronounced criminal which is not clearly made so by statute; so, too, no person who is not clearly within the terms of a statute can be brought within them. Any reasonable doubt must be resolved in favor of the accused."
(People v. Deleverio)

RECLUSION PERPETUA IS LIGHTER THAN LIFE IMPRISONMENT AND IF ONE IS SENTENCED TO LIFE IMPRISONMENT AND LATER IMPOSED RECLUSION PERPETUA TO SAME OFFENSE, THE PENALTY THAT SHOULD BE IMPOSED IS RECLUSION PERPETUA

Since reclusion perpetua is a lighter penalty than life imprisonment, and considering the rule that criminal statutes with a favorable effect upon the accused have, as to him, a retroactive effect, the penalty imposable upon the accused should be reclusion perpetua and not life imprisonment.
(People v. Latura)

JUSTIFICATION FOR THE IMPOSITION OF THE DEATH PENALTY

Although its origins seem lost in obscurity, the imposition of death as punishment for violation of law or custom, religious or secular, is an ancient practice. We do know that our forefathers killed to avenge themselves and their kin and that initially, the criminal law was used to compensate for a wrong done to a private party or his family, not to punish in the name of the state. 59

The dawning of civilization brought with it both the increasing sensitization throughout the later generations against past barbarity and the institutionalization of state power under the rule of law. Today every man or woman is both an individual person with inherent human rights recognized and protected by the state and a citizen with the duty to serve the common weal and defend and preserve society. One of the indispensable powers of the state is the power to secure society against threatened and actual evil. Pursuant to this, the legislative arm of government enacts criminal laws that define and punish illegal acts that may be committed by its own subjects, the executive agencies enforce these laws, and the judiciary tries and sentences the criminals in accordance with these laws. Although penologists, throughout history, have not stopped debating on the causes of criminal behavior and the purposes of criminal punishment, our criminal laws have been perceived as relatively stable and functional since the enforcement of the Revised Penal Code on January 1, 1932, this notwithstanding occasional opposition to the death penalty provisions therein. The Revised Penal Code, as it was originally promulgated, provided for the death penalty in specified crimes under specific circumstances. As early as 1886, though, capital punishment had entered our legal system through the old Penal Code, which was a modified version of the Spanish Penal Code of 1870. (People v. Echegaray)
WHY DEATH PENALTY IS NOT A CRUEL AND UNUSUAL PUNISHMENT

"The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte Kemmler, 136 U.S., 436, the United States Supreme Court said that 'punishments are cruel when they involve torture or a lingering death, but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.'"

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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)

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(7) (8)

(9)

(11)

(10)

(12) transportation of (13) (14) (15) (16) (17) (18) (19) (20) (21) (22)

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); 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 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);

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(23) (24)

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) (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)

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(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 )

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(5) Sale, administration, delivery, distribution and transportation of prohibited drugs where the victim is a minor or the victim dies "Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of victim thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec. 13) (6) Maintenance of den, dive, or resort for users of prohibited drugs where the victim is a minor or the victim dies "Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum of the penalty [of death] shall be imposed in every case where a prohibited drug is administered, delivered or sold to a minor who is allowed to use the same in such place. Should a prohibited drug be the proximate case of the death of a person using the same in such den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 13) (7) Sale, administration, dispensation, delivery, distribution and transportation of regulated drugs where the victim is a minor or the victim dies "Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a regulated drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec. 14) (8) Maintenance of den, dive, or resort for users of regulated drugs where the victim is a minor or the victim dies "Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum penalty [of death] herein provided shall be imposed in every case where a regulated drug is administered, delivered or sold to a minor who is allowed to use the same in such place. 65

Should a regulated drug be the proximate cause of death of a person using the same in such den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 15) (9) Drug offenses if convicted are government officials, employees or officers including members of police agencies and armed forces "The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1), 6, 7, 8, 9, 11,12 and 13 of Article II and Sections 14, 14-A, 14(1), 15A (1), 16, and 19 of Article III [of the Dangerous Drugs Act of 1972] shall be imposed, if those found guilty or any of the same offenses are government officials, employees or officers including members of police agencies and the armed forces." (Sec. 19) (10) Planting of dangerous drugs as evidence in drug offenses with the mandatory death penalty if convicted are government officials, employees or officers "Any such above government official, employee or officer who is found guilty of 'planting' any dangerous drugs punished in Section s 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15, and 16 of Article III (of the Dangerous Drugs Act of 1972) in the person or in the immediate vicinity of another as evidence to implicate the latter, shall suffer the same penalty as therein provided." (Sec. 19) (11) In all the crimes in RA. No. 7659 in their qualified form "When in the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum [of death] regardless of mitigating circumstances. The maximum penalty [of death] shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group. An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually

66

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

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that hurts not only the victim but the society itself." (People v. Echegaray)
WHY CAPITAL PUNISHMENT SHOULD NOT BE ABOLISHED

"Capital punishment ought not to be abolished solely because it is substantially repulsive, if infinitely less repulsive than the acts which invoke it. Yet the mounting zeal for its abolition seems to arise from a sentimentalized hyperfastidiousness that seeks to expunge from the society all that appears harsh and suppressive. If we are to preserve the humane society we will have to retain sufficient strength of character and will to do the unpleasant in order that tranquillity and civility may rule comprehensively. It seems very likely that capital punishment is a . . . necessary, if limited factor in that maintenance of social tranquillity and ought to be retained on this ground. To do otherwise is to indulge in the luxury of permitting a sense of false delicacy to reign over the necessity of social survival." (People v. Echegaray)
RA 6425 AS AMENDED BY RA 7659 WHEN PENALTY IN NEW LAW NOT FAVORABLE TO ACCUSED IT SHOULD BE RETAINED

Appellant in this case was convicted and meted the penalty of life imprisonment and fine of twenty thousand pesos under RA 6425 for transporting more or less 6 kilos of marijuana on July 1990. RA 7659, which took effect on December 31/93, amended the provisions of RA 6425, increasing the imposable penalty for the sale or transport of 750 grams or more of marijuana to reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesos. Such penalty is not favorable to the appellant as it carries the accessory penalties provided under the RPC and has a higher amount of fine which in accordance with ART 22 of the same code should not be given retroactive effect. The court, therefore, finds and so holds that the penalty of life imprisonment and fine in the amount of twenty thousand pesos correctly imposed by the trial court should be retained. (PP v Carreon, 12/9/97)
COURTS SHOULD NOT BE CONCERNED ABOUT WISDOM, EFFICACY OR MORALITY

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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 law-making body. (People v. Veneracion)
REASON FOR DURATION OF RECLUSION PERPETUA OF 30 OR 40 YEARS

The imputed duration of thirty (30) years for reclusion perpetua, therefore, is only to serve as the basis for determining the convict's eligibility for pardon or for the application of the three-fold rule in the service of multiple penalties. (People v. Lucas) ROBBERY WITH HOMICIDE, NUMBER OF PERSONS KILLED DOES NOT ALTER CHARACTERIZATION OF THE OFFENSE BUT CAN BE APPRECIATED AS AGGRAVATING CIRCUMSTANCE. While the number of persons killed does not alter the characterization of the offense as robbery with homicide, the multiplicity of the victims slain should have been appreciated as an aggravating circumstance. This would preclude an anomalous situation where, from the standpoint of the gravity of the offense, robbery with one killing would be treated in the same way that robbery with multiple killings would be. (People V. Timple)
ROBBERY WITH HOMICIDE AND ROBBERY WITH RAPE; PROVISION OF ARTICLE 294 OF THE REVISED PENAL CODE AS AMENDED BY REPUBLIC ACT 7659 CANNOT BE APPLIED RETROACTIVELY; CASE AT BAR.

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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)

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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; 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 OR ELEMENT OF KIDNAPPING

LOCKING

UP,

AN

ESSENTIAL

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 71

that there is an overlapping error, probably through oversight in the drafting, in the provisions on the penalty of reclusion perpetua as shown by its dual imposition, i.e., as the minimum of the penalty where the quantity of the dangerous drugs involved is more than those specified in the first paragraph of the amended Section 20 and also as the maximum of the penalty where the quantity of the dangerous drugs involved is less than those so specified in the first paragraph. (3) Considering that the aforesaid penalty of prision correccional to reclusion temporal shall depend upon the quantity of the dangerous drugs involved, each of the component penalties thereof prision correccional, prision mayor, and reclusion temporal shall be considered as a principal imposable penalty depending on the quantity, such that the quantity of the drugs enumerated in the second paragraph should then be divided into three, with the resulting quotient, and double or treble the same, as the bases for determining the appropriate component penalty. (4) The modifying circumstances in the Revised Penal Code may be appreciated to determine the proper period of the corresponding imposable penalty or even to effect its reduction by one or more degrees; provided, however, that in no case should such graduation of penalties reduce the imposable penalty lower than prision correccional. (5) In appropriate instances, the Indeterminate Sentence Law shall be applied and considering that R.A. No. 7659 has unqualifiedly adopted the penalties under the Revised Penal Code with their technical signification and effects, then the crimes under the Dangerous Drugs Act shall now be considered as crimes punished by the Revised Penal Code; hence, pursuant to Section 1 of the Indeterminate Sentence Law, the indeterminate penalty which may be imposed shall be one whose maximum shall be within the range of the imposable penalty and whose minimum shall be within the range of the penalty next lower in degree to the imposable penalty. With the foregoing as our touchstones, and it appearing that the quantity of the shabu recovered from the accused in this case is only 0.0958 gram, the imposable penalty under the second paragraph of Section 20 of R.A. No. 6425, as further amended by Section 17 of R.A. No. 7659, should be prision correccional. Applying the Indeterminate Sentence Law, the accused may then be sentenced to suffer an indeterminate penalty ranging from six (6) months of arresto mayor as minimum to six (6) years of prision correccional as maximum. 72

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 -vsROGELIO 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

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(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
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 74

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)

SECTION 1.Section 1 Presidential Decree No. 1866, 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, 75

as

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. 76

"The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legal authority therefor." SECTION 2. Section 3 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows: "SECTION 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives. The penalty of prision mayor in its maximum period to reclusion temporal and a fine of not less than Fifty thousand pesos (P50,000) shall be imposed upon any person who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess hand grenade(s), rifle grenade(s), and other explosives, including but not limited to 'pillbox,' 'molotov cocktail bombs,' 'fire bombs,' or other incendiary devices capable of producing destructive effect on contiguous objects or causing injury or death to any person. "When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as an aggravating circumstance. "If the violation of this Section is in furtherance of, or incident to, or in connection with the crime of rebellion, insurrection, sedition or attempted coup d'etat, such violation shall be absorbed as an element of the crimes of rebellion, insurrection, sedition or attempted coup d'etat. "The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the explosives owned by 77

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

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

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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

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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. 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

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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 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:

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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) 82

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. 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

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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. 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. 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. It then appears to be the more reasonable position that where a person is apprehended with an unlicensed weapon, 84

ii.

iii.

iv.

animus possidendi will be disputably presumed. The accused may controvert the presumption of animus possidendi. To convict, the court needs proof beyond reasonable doubt of animus possidendi. 1.4 What the prosecution must prove for it to succeed under the law is two-fold: first, the existence of the firearm; second, the absence of a license or a permit to possess. (People v. Rugay, 291 SCRA 692) a.) To prove the existence of the firearm, it is not absolutely necessary that the object evidence be presented. It is very well possible that the accused effectively conceals the weapon before his apprehension. Incontrovertible testimonial evidence may successfully established the existence of the firearm. (People v. Narvasa, G.R. 132878 [November 16, 1998]), b.) An interesting question arises. The present law makes penalties depend on the caliberof the firearm, i.e, on whether it is high-powered or low-powered In People v. Gutierrez, G.R. 132878 (January 18, 1999) the Supreme Court ruled that a U.S. carbine M1 caliber .30 was 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 85

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! 2.1 It is clear that where there is no other offense except the unlawful possession of a firearm, the penalties provided for in the amended Section 1 shall be imposed: prision correccional in its maximum period for low-powered firearms, and prision mayor in its maximum periods for highpowered firearms. Thus in People v. Nunez, G.R. 112092 (March 1, 2001) holds that a person may be convicted of simple illegal possession if the illegal possession is proved and the frustrated murder and murder case involving the use of the illegal possession has not been sufficiently proved. People v. Avecilla, G.R. 117033 (February 15, 2001) teaches that the crime of illegal possession of firearms, in its simple form, is committed any of the

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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. 13185657 (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 87

attempted coup d etata? People v. Walpandladjaalam, G.R. 1361149-51 ( September 19, 2000) provides the answer in the distinctively clear language of Justice Panganiban: The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we. In brief, where the accused commits a crime other than those enumerated with the use of an unlicensed weapon, no separate charge for such use will be brought against him. Consistent with this is the disposition by the Supreme court decreed: Accordingly, all pending cases for illegal possession of firearms should be dismissed if they arose from the commission of crimes other than those indicated in Section 1 and 3 of R.A. 8294. 2.5 Clearly the law leads to absurd results, for when the use of an unlicensed weapon attends the commission of a crime, no matter how trivial, the case of illegal possession recedes into judicial irrelevance. The matter is definitely one that calls for a curative statute and the Supreme Court has referred the matter to the Congress for another look. One moral lesson can be learned: Laws passed as favor to ones friend is a poor laws!
OWNERSHIP 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

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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 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 89

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)

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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 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

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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 -vsMeriato Molina, et al., G.R. No. 115835, July 22, 1998; People -vsNarvasa, G.R. no. 128618 November 18, 1998)

The Decision of the Supreme Court in People -vsPaterno 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. 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.

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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 highpowered 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,

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GR No. 128618, November 18, 1998)

The Decision of the Supreme Court in People versus Rex Bergante, et. al., GR No. 120369, February 27, 1998, that the use of an unlicensed firearm to commit murder is only a generic aggravating circumstance is no longer true. Possession under the law may either be actual physical possession or constructive possession. However, although the crime under PD 1866, as amended, is malum prohibitum, however, there must be animus possidendi, or intent to possess. Animus possidendi may be inferred from the fact that an unlicensed firearm is under the apparent control and power of the accused. however, animus possidendi may be contradicted if a person in possession of an unlicensed firearm does not assert a right thereto. If the possession of an unlicensed gun is merely temporary, incidental or transient, the same is not punishable under PD 1866. However, the law does not provide for a fixed period of time for one to be deemed in "possession" of an unlicensed firearm. (People -vs- Rolando Verches, 233 SCRA 174). Each factual milieu must be considered.
IMPLICATION BY RA 8294 POSSESSION OF FIREARMS) ON PD 1866 (ILLEGAL

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 94

case at bar. It was thus error for the trial court to convict the appellant of two (2) separate offenses, i.e., Homicide and Illegal Possession of Firearms, and punish him separately for each crime. Based on the facts of the case, the crime for which the appellant may be charged is homicide, aggravated by illegal possession of firearm, the correct denomination for the crime, and not illegal possession of firearm, aggravated by homicide as ruled by the trial court, as it is the former offense which aggravates the crime of homicide under the amendatory law.
EVEN IF ACCUSED ADMITTED THAT HE HAS NO LICENSE, SUCH ADMISSION IS NOT SUFFICIENT PROOF OF ILLEGAL POSSESSION OF FIREARM

Hence, in the case at bar, although the appellant himself admitted that he had no license for the gun recovered from his possession, his admission will not relieve the prosecution of its duty to establish beyond reasonable doubt the appellant's lack of license or permit to possess the gun. In People vs. Solayao, we expounded on this doctrine, thus: "x x x by its very nature, an admission is the mere acknowledgement of a fact or of circumstances from which guilt may be inferred, tending to incriminate the speaker, but not sufficient of itself to establish his guilt." In other words, it is a statement by defendant of fact or facts pertinent to issues pending, in connection with proof of other facts or circumstances, to prove guilt, but which is, of itself, insufficient to authorize conviction. From the above principles, this Court can infer that an admission in criminal cases is insufficient to prove beyond doubt the commission of the crime charged. "Moreover, said admission is extrajudicial in nature. As such, it does not fall under Section 4 of Rule 129 of the Revised Rules of Court which states: An admission, verbal or written, made by a party in the course of the trial or other proceedings in the same case does not require proof.

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"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?

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In the case of an explosive, a permit or license to possess it is usually granted to mining corporations, military personnel and other legitimate users. (PP -vs- BERNIE CORTEZ Y NATANIO, ET AL., G.R. Nos. 131619-20, Feb. 1, 2000)

UNDER R.A. 8294 A SEPARATE CONVICTION FOR ILLEGAL POSSESSION OF FIREARMS AND FOR HOMICIDE IS NOT ALLOWED

With respect to the conviction of accused-appellant for illegal possession of firearms under P.D. No. 1866, it was held in the case of People vs. Molina and reiterated in the recent case of People vs. Ronaldo Valdez, that in cases where murder or homicide is committed with the use of an unlicensed firearm, there can be no separate conviction for the crime of illegal possession of firearms under P.D. No. 1866 in view of the amendments introduced by Republic Act No. 8294. Thereunder, the use of unlicensed firearm in murder or homicide is simply considered as an aggravating circumstance in the murder or homicide and no longer as a separate offense. Furthermore, the penalty for illegal possession of firearms shall be imposed provided that no crime is committed. In other words, where murder or homicide was committed, the penalty for illegal possession of firearms is no longer imposable since it becomes merely a special aggravating circumstance. (PP -vs- AUGUSTO LORETO
RINGOR, JR., G.R. No. 123918, Dec. 9, 1999) 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

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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 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.

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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. 131619-20, 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)

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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:
Sec. 1.

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 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

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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: 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 RTJ-99-1443. G.R. No. 142943, April 3, 2002]

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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 102

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 Defined

or Training-related

Sexual

Harassment

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) 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.

(2) (3)

In an education or training environment:

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(1) (2) (3)

Against one who is under the care, custody or supervision of the offender; 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 When the sexual advances result in an intimidating, hostile or offensive environment for the student, trainee or apprentice.

(4)

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 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

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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,

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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 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 106

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 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 107

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

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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

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

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Children, whether male or female, who for money, profit, any other consideration or due to the coercion or influence any adult, syndicate or group, indulge in sexual intercourse lascivious conduct, are deemed to be children exploited prostitution and other sexual abuse.

or of or in

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 prostitution in addition to the activity for which the license has been issued to said establishment.
ATTEMPT TO COMMIT

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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;

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(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 low-income families, hospitals, clinics, nurseries, day-care centers, or other childduring 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.
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

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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.

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(e) Any person who shall use, coerce, force or intimidate a street child or any other child to: (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

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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

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

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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 dulylicensed 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.

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RA 7658 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.

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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

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 118

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 119

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 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

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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 L-45280-81, 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 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

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More importantly, AAA cannot be considered a child under Section 3(a) of R.A. No. 7610 which reads: (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 122

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 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

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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. 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,

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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 125

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. 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

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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 127

the Bangko Commission.

Sentral

and

the

Securities

and

Exchange

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. Conservation, protection and sustained management of the countrys fishery and aquatic resources.

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b.

Poverty alleviation and the provision of supplementary livelihood among municipal fisherfolk; c. Improvement of productivity of aquaculture within ecological limits; d. Optimal utilization of offshore and deep-sea resources; and e. 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)

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)

The trial court has no jurisdiction to make a disposition of inalienable public land.
PEOPLE OF THE PHILIPPINES VS. MACARAEN, G.R. No. L32166 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

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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:

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PEOPLE OF THE PHILIPPINES 182232, OCTOBER 6, 2008

VS.

HU,

G.R.

NO.

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

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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 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 132

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

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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 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

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in this case. The records show that appellants sold and delivered the shabu to the PDEA agent posing as a poseurbuyer. 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 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

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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 136

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, 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 137

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 VS. RICARDO ALUNDAY, G.R. 181546, September 3, 2008

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 prime importance that in these cases, the identity of the dangerous drug be likewise established beyond

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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, 177220, APRIL 24, 2009

G.R. NO.

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

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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. 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

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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

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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 Possession of timber or other forest products without the legal documents required under existing forest laws and regulations.

(2)

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, 142

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 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 143

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; e) To investigate suspicious transactions and covered transactions deemed suspicious after an 144

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 antimoney 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 145

public officers shall be under Sandiganbayan. (Sec. 5, RA 9160)

the

jurisdiction

of

the

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)
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 non-bank 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.

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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 pre-existing 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 (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

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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

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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; (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;

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(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 non-combatant 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. Large cattle is taken 2. It belongs to another 3. The taking is done without the consent of the owner or raiser 4. The taking is done by any means, method or scheme 5. The taking is done with or without intent to gain 6. 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 151

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: 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.

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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) 153

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, 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, September 2000) (GR No. 131492, 29

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

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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 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.

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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 Anti156

Carnapping 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. 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:

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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 158

a controversy the jurisdiction over which is initially lodged with an administrative body of special competence. Xxx.

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.

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Drug Syndicate Any organized group of two (2) or more persons forming or joining together with the intention of committing any offense prescribed under this Act. Illegal Trafficking The illegal cultivation, culture, delivery, administration, dispensation, manufacture, sale, trading, transportation, distribution, importation, exportation, and possession of any dangerous drug and/or controlled precursor and essential chemical. Protector/Coddler Any person who knowingly and willfully consents to the unlawful acts provided for in this Act and uses his/her influence, power or position in shielding, harboring, screening or facilitating the escape of any person he/she knows, or has reasonable ground to believe on or suspects, has violated the provision of this Act in order to prevent the arrest, prosecution and conviction of the violator. Pusher Any person who sells, trades, administers, dispenses, delivers, or gives away to another, on any terms whatsoever, or distributes, dispatches in transit or transports dangerous drugs or who acts as a broker in any of such transaction, in violation of this Act. Planting of evidence the willful act by any person of maliciously and surreptitiously inserting, placing, adding or attaching directly or indirectly, through any overt or covert act whatever quantity of any dangerous drug and/or controlled precursor and essential chemical in the person, house, effects or in the immediate vicinity of an innocent individual for the purpose of implicating, incriminating, or imputing the commission of any violation of this Act. What 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.

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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.

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6)Sale, trading, administration, dispensation, distribution and transportation of dangerous drugs, regardless of quantity and purity involved, or acting as a broker in any of such transactions. 7)Sale, trading, administration, dispensation, distribution and transportation of any controlled precursor and essential chemical, or acting as a broker in such transaction. 8)Use by drug pushers of minors or mentally incapacitated individuals as runners, couriers and messengers, or in any other capacity directly connected to the trade of dangerous drugs and/or controlled precursor and chemicals. 9) Acting as a protector/coddler of any violator of the provision of Sec. 5. 10) Maintenance of a Den, Dive or Resort where any dangerous drug is used or sold in any form. 11) Maintenance of a Den, Dive or Resort where any controlled precursors and essential chemical is used or sold in any form. 12) Acting as protector/coddler of a maintainer of a Den, Dive, or Resort. 13) Employees and Visitors of a Den, Drive, or Resort 14) Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals 15) Acting as a protector or coddler of any violator of Sec. 8 16) Illegal Chemical Diversion of Controlled Precursor and Essential Chemicals. 17) Manufacture or Delivery of Equipment, Instrument, Apparatus, and other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. 18) Possession of Drug. 162

19) Possession of equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs 20) Possession of Dangerous Drugs During Parties, Social Gathering or Meetings. 21) Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs during Parties, Social Gathering or Meetings. 22) Use of Dangerous Drugs. 23) Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources thereof. 24) Maintenance and keeping of Original Records of Transaction on Dangerous Drugs and/or Controlled Precursors and Essential Chemicals 25) Unnecessary Prescription of Dangerous Drugs 26) Unlawful Prescription of Dangerous Drugs 27) Attempt or Conspiracy to commit the following unlawful acts: (a) Importation of any dangerous drugs and/or controlled precursor and essential chemical; (b) Sale, trading, administration, dispensation, delivery, distribution, and transportation of any dangerous drug and/or controlled precursor and essential chemical; (c) Maintenance of a den, dive, or resort where dangerous drugs is used in any form; (d) Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and (e) Cultivation or culture of plants which are sources of dangerous drugs.
CRIMINAL LIABILITY OF ALIENS, OFFICERS OF PARTNERSHIP, CORPORATION, ASSOCIATIONS, OR OTHER JURIDIUCAL ENTITIES

1. In addition to the penalties prescribed in the unlawful act committed, any alien who violates such provisions of the Law, after service of sentences, shall be deported immediately without further proceedings, unless the penalty is death.

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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 EMPLOYEES OF PUBLIC OFFICERS OR

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 164

or juridical persons found guilty of trafficking dangerous drug as prescribed in the law, shall be removed from office and perpetually disqualified from holding any elective or appointive positions in the government, its divisions, subdivisions, and intermediaries, including governmentowned 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

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1.) If the importation or bringing into the Philippines of any dangerous drugs and/or controlled precursor and essential chemicals was done through the use of diplomatic passport, diplomatic facilities or any other means involving his/her official status intended to facilitate the unlawful entry of the same 2.) The sale trading, administration, dispensation, delivery, distribution or transportation of any dangerous drug and/or controlled precursor and essential chemical transpired within one hundred (100) meters from the school 3.) The drug pusher use minors or mentally incapacitated individuals as runners, couriers and messenger, or in any other capacity directly connected to the dangerous drug and/or controlled precursor and essential chemical trade. 4.) The victim of the offense is a minor or mentally incapacitated individual, or should a dangerous drug and/or controlled precursor and essential chemicals involved `in any offense be the proximate cause of death of a victim. 5.) In case the clandestine laboratory is undertaken or established under the following circumstances: a.) Any phase of the manufacturing process was conducted in the presence or with the help of minor/s b.) Any phase of manufacturing process was established or undertaken within one hundred (100) meters of a residential, business, church or school premises. c.) Any clandestine laboratory was secured or protected with booby traps. d.) Any clandestine laboratory was concealed with legitimate business operations. e.) Any employment of a practitioner, chemical engineer, public official or foreigner.

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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 plea-bargaining. 2.)Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law of P.D. No. 968, as amended, except minors who are first-time offenders. Note:- Pendency 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, 167

Article II of this Act as well as any violation of the offenses mentioned if committed by drug syndicate, or of any information leading to the whereabouts, identities and arrest of all or any of the members thereof; and who willingly testifies against such persons as described above, shall be exempted from the prosecution or punishment for the offense with reference to which his/her information of testimony in bar of such prosecution; Provided, that the following condition concur: 1.) The information and testimony are necessary for the conviction of the person described above; 2.) Such information are not yet in the possession of the State; 3.) Such information and testimony can be corroborated on its material points; 4.) The informant or witness has not been previously convicted of a crime involving moral turpitude, except when there is no other direct evidence available for the State other than the information and testimony of said informant or witness; and 5.) The informant or witness shall strictly and faithfully comply without delay, any condition or undertaking, reduced into writing, lawfully imposed by the State as further consideration for the grant of immunity from prosecution and punishment. Provided, further, That this immunity may be enjoyed by such informant or witness who does not appear to be most guilty for the offense with reference to which his/her information or testimony were given. Provide, finally, that there is no direct evidence available for the State except for the information and testimony of the said informant or witness.

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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

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 169

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

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be forwarded to the court and their use shall be determined by the court, taking into consideration public interest and the welfare of the drug dependant (Sec. 64)
DISCHARGED AFTER COMPLIANCE WITH CONDITIONS OF SUSPENDED SENTENCE OF A FIRST-TIME MINOR OFFENDER

If the accused first time minor offender under suspended sentence complies with the applicable rules and regulation of the Board, including confinement in a Center, the court, upon a favorable recommendation of the Board for a final discharge of the accused, shall discharge the accused and dismiss all proceedings. Upon the dismissal of the proceedings against the accused, the court shall enter an order to expunge all official records, other than the confidential record to be retained by the DOJ relating to the case. Such an order, which shall be kept confidential, shall restore the accused to his/her status prior to the case. He/she shall not be held thereafter to be guilty of perjury or of concealment or misrepresentation by reason of his/her failure to acknowledge the case or recite any fact related therto in response to any inquiry madeof him for any purpose (Sec. 67)
THE DANGEROUS DRUGS BOARD AND PHILIPPINE DRUG ENFORCEMENT AGENCY The Dangerous Drug Board A. Function

The Dangerous Drug Board shall be the policymaking 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 171

representative; (e) The Minister of Finance or his representative; (f) The Minister of Social Service and Development or his representative; and (g) The Minister of Local Government or his representative (Sec. 35 Art. 8, R.A. 6424) The Minister of Health shall be the Chairman of the Board and the Director of the National Bureau of Investigation shall be the permanent consultant of the Board. Under Section 78 of R.A. 9165, the membership of the Dangerous Drugs Board was expanded to seventeen (17) members, three (3) of which are permanent members, twelve (12) shall be in ex officio capacity, and the remaining two (2) shall be regular members. The three (3) permanent members, who shall possess At least seven-year training andexperience in the field of dangerous drugs andin any of the following fields: in law, medicine, criminology, psychology or social work, shall be appointed by the President of the Philippines. The President shall designate a Chairman, who shall have the rank of a secretary from among the three (3) permanent members who shall serve for six (6) years. Of the two (2) other members, who shall have the rank of undersecretary, one (1) shall serve for four (4) and the other for two (2) years. Thereafter, the person appointed to succeed such members shall hold office for a term of six (6) years and until their successors shall have been duly appointed and qualified. The other twelve (12) members who shall be ex officio members of the Board are the following: (1) Secretary of the Department of Justice or his/her representative; (2) Secretary of the Department of Health or his/her representative; (3) Secretary of the Department of National Defense or his/her representative; (4) Secretary of the Department of Finance or his/her representative; (5) Secretary of the Department of Labor and Employment or his/her representative; (6) Secretary of the Department of Interior and Local Government or his/her representative; (7) Secretary of the Department of 172

Social Welfare and Development or his/her representative; (8) Secretary of the Department of Foreign Affairs or his/her representative; (9) Secretary of the Department of Education or his/her representative; (10) Chairman of the Commission of Higher Education or his/her representative; (11) Chairman of the National Youth Commission; and (12) Director General of the Philippine Drug Enforcement Agency. Cabinet secretaries who are members of the Board may designate their duly authorized and permanent representatives whose rank shall in no case be lower than undersecretary. The two (2) regular members shall be as follows: (a) The President of the Integrated Bar of the Philippines; and (b) The chairman or president of a non- chairman or president of a non- chairman or president of a nongovernment organization involved in dangerous drug campaign to be appointed by the President of the Philippines. The Philippine (PDEA) Drug Enforcement Agency

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

a.) Implement or cause the efficient and effective implementation of the national drug control strategy formulated by the Board thereby carrying out a national drug campaign program which shall 173

include drug law enforcement, control and prevention campaign with the assistance of concerned government agencies; b.) Undertake the enforcement of the provision of article II of this Act relative to the unlawful acts and penalties involving any dangerous drug and/or controlled precursor and essential chemical and investigate all violators and other matters involved in the commission of any crime relative to the use, abuse or trafficking of any dangerous drug and/or controlled precursor and essential chemicals as provided for in this Act and the provisions of Presidential Decree No. 1619; c.) Administer oath, issue subpoena and subpoena duces tecum relative to the conduct of investigation involving violation of this Act; d.)Arrest and apprehend as well as search all violators and seize or confiscate, the effects or proceeds of the crime as provided by law and take custody thereof, for this purpose the prosecutors and enforcement agents are authorized to possess firearms, in accordance with the existing laws; e.)Take charge and have custody of all dangerous drugs and/or controlled precursors and essential chemicals seized, confiscated or surrendered to any national, provincial or local law enforcement agency; if no longer needed for purposes of evidence in court. f.) Establish forensic laboratories in each PNP office in every province and city in order to facilitate action on seized or confiscated drugs; thereby hastening its destruction without delay; g.)Recommend to the DOJ the forfeiture of properties and other assets of persons and/or corporations found to be violating the provisions of this Act and in accordance with the pertinent provisions of the Anti-Money Laundering Act of 2002.

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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; 175

n.) Create and maintain an efficient special enforcement unit to conduct an investigation, file charges and transmit evidence to the proper court, wherein members of the said unit shall possess suitable and adequate firearms for their protection in connection with the performance of their duties; Provided, That no previous special permit for such possession shall be required; o.)Require all government and private hospitals, clinics, doctors, dentists and other practitioners to submit a report to it, in coordination with the Board, about all dangerous drugs and/or controlled precursors and essential chemicals which they have attended to for data and information purposes; p.)Coordinate with the Board for the facilitation of the issuance of necessary guidelines, rules and regulations for the proper implementation of this Act; q.) Initiate and undertake a national campaign for drug prevention and drug control programs, where it may enlist the assistance of any department, bureau, office, agency, or instrumentality of the government, including government-owned and/or controlled corporations, in the anti-illegal drugs drive, which may include the use of their respective personnel, facilities, and resources for a more resolute detection and investigation of drug-related crimes and prosecution of the drug traffickers; and r.) Submit an annual and periodic report to the Board as may be required form time to time, and perform such other functions as may be authorized or required under existing laws and as directed by the President himself/herself or as recommended by the congressional committees concerned. Note: There are however certain power and duties of the PDEA enumerated under Section 84 of R.A. 9165 which seems to overlap with the functions of prosecutors such 176

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) 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

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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.

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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: 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; 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; 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

2.

3.

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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 twentyfour (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; 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; 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 180

5.

6.

appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorneys office to represent the former; 7. After the promulgation of judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-foru (24) hours from receipt of the same; and 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)

8.

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:

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a.) He/She has not been previously convicted of violating any provision of this Act, or of the Dangerous Drugs Act of 1972, as amended; or of the Revised Penal Code; or any special penal laws; b.) He/She has not been previously committed to a Center or to the care of a DOH-accredited physician; and c.) The Board favorably recommends that his/her sentence be suspended.
PRIVILEGE OF SUSPENDED SENTENCE CAN BE AVAIL ONLY ONCE BY A FIRST-TIME MINOR OFFENDER

The privilege of suspended sentence shall be availed of only once by accused drug dependent who is a first-time offender over fifteen (15) years of age at the time of the commission of the violation of Section 15 of this Act but not more than eighteen (18) years of age at the time when judgment should have been promulgated. (Sec. 68)
PROMULAGATION 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 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 182

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

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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 reassigned for compelling reason: Provided, that his/her immediate superior shall notify the court where the case is pending of the order to transfer or re-assign, within twentyfour (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 re-assign.
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 184

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.
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 185

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

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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 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.

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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 accusedappellants drug pushing was positively attested to. Moreover, informants are generally not presumed in court because of the need to hide their identity and preserve their invaluable service to the police. (People v. Girang; GR 97949, 2/1/95)
EFFECT 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 188

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 189

for investigation and subsequent prosecution. We have ruled in a long line of cases that: "When one voluntarily submits to a search or consents to have it made on his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, page 631). The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly." The appellants effectively waived their constitutional right against the search and seizure in question by their voluntary submission to the jurisdiction of the trial court, when they entered a plea of not guilty upon arraignment and by participating in the trial. (People v. Correa; GR 119246, Jan. 30, 98) WHEN 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:

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(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 evidence without further search; seizure of

3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity; 4. 5. 6. 7. Consented warrantless search; Customs search; Stop and Frisk; and 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 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

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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 accusedappellant 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 192

NARCOM informant. Since there was a valid warrantless search by the NARCOM agents, any evidence obtained in the course of said search is admissible against accused-appellant. Again, this case differs from Aruta as this involves a search of a moving vehicle plus the fact that the police officers erected a checkpoint. Both are exceptions to the requirements of a search warrant. In Manalili v. Court of Appeals and People, the policemen conducted a surveillance in an area of the Kalookan Cemetery based on information that drug addicts were roaming therein. Upon reaching the place, they chanced upon a man in front of the cemetery who appeared to be "high" on drugs. He was observed to have reddish eyes and to be walking in a swaying manner. Moreover, he appeared to be trying to avoid the policemen. When approached and asked what he was holding in his hands, he tried to resist. When he showed his wallet, it contained marijuana. The Court held that the policemen had sufficient reason to accost accused-appellant to determine if he was actually "high" on drugs due to his suspicious actuations, coupled with the fact that based on information, this area was a haven for drug addicts. This case is similar to People v. Aminnudin where the police received information two days before the arrival of Aminnudin that the latter would be arriving from Iloilo on board the M/V Wilcon 9. His name was known, the vehicle was identified and the date of arrival was certain. From the information they had received, the police could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Instead of securing a warrant first, they proceeded to apprehend Aminnudin. When the case was brought before this Court, the arrest was held to be illegal; hence any item seized from Aminnudin could not be used against him. Another recent case is People v. Encinada where the police likewise received confidential information the day before at 4:00 in the afternoon from their informant that Encinada would be bringing in marijuana from Cebu City on board M/V Sweet Pearl at 7:00 in the morning of the following day. This intelligence information regarding the culprit's identity, the particular crime he allegedly committed and his exact whereabouts could have been a basis of probable cause 193

for the lawmen to secure a warrant. This Court held that in accordance with Administrative Circular No. 13 and Circular No. 19, series of 1987, the lawmen could have applied for a warrant even after court hours. The failure or neglect to secure one cannot serve as an excuse for violating Encinada's constitutional right. People v. Solayao, applied the stop and frisk principle which has been adopted in Posadas v. Court of Appeals. In said case, Solayao attempted to flee when he and his companions were accosted by government agents. In the instant case, there was no observable manifestation that could have aroused the suspicion of the NARCOM agents as to cause them to "stop and frisk" accused-appellant. To reiterate, accused-appellant was merely crossing the street when apprehended. Unlike in the abovementioned cases, accused-appellant never attempted to flee from the NARCOM agents when the latter identified themselves as such. Clearly, this is another indication of the paucity of probable cause that would sufficiently provoke a suspicion that accused-appellant was committing a crime. This Court cannot agree with the Solicitor General's contention for the Malasugui case is inapplicable to the instant case. In said case, there was probable cause for the warrantless arrest thereby making the warrantless search effected immediately thereafter equally lawful. On the contrary, the most essential element of probable cause, as expounded above in detail, is wanting in the instant case making the warrantless arrest unjustified and illegal. Accordingly, the search which accompanied the warrantless arrest was likewise unjustified and illegal. Thus, all the articles seized from the accused-appellant could not be used as evidence against her. (People v. Menguin)
WHEN SEARCH IS NOT VALID

Accused-appellant Aruta cannot be said to be committing a crime. Neither was she about to commit one nor had she just committed a crime. Accused-appellant was merely crossing the street and was not acting in any manner that would engender a reasonable ground for the NARCOM agents to suspect and conclude that she was committing a crime. It was only when the informant pointed to accused-

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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 accusedappellant were it not for the furtive finger of the informant because, as clearly illustrated by the evidence on record, there was no reason whatsoever for them to suspect that accused-appellant was committing a crime, except for the pointing finger of the informant. This the Court could neither sanction nor tolerate as it is a clear violation of the constitutional guarantee against unreasonable search and seizure. Neither was there any semblance of any compliance with the rigid requirements of probable cause and warrantless arrests. Consequently, there was no legal basis for the NARCOM agents to effect a warrantless search of 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 accused-appellant in handing over her bag to the NARCOM agents could not be construed as voluntary submission or an implied acquiescence to the unreasonable search. The instant case is similar to People v. Encinada. (People v. Menguin)
WHEN SEARCH IS NOT ALLOWED AFTER AN ARREST IS MADE

In the case of People v. Lua, this Court held:

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"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, 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 196

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 accused-appellants; hence, their acquittal must follow in faithful obeisance to the fundamental law. (PP -vsZENAIDA 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 x 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

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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

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

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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 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 199

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 200

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) 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:

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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 buy-bust 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, 202

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 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 203

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) 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

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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 205

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 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 drugtesting 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 policy-declaration 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.

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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 their right to privacy. To impose mandatory drug testing on the accused is a blatant attempt to harness a medical test a tool 207

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 noncompliance 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

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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) 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 209

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) 210

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 accused-appellants 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 211

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 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 212

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 213

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 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

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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 postseizure 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.

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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

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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 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

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its tendency to convince and persuade. delecti in this case is not legally extant. -

All told, the corpus

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.

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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 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) 219

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. D-747-03, 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 welldocumented, was the same as that taken from accusedappellant. 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 noncompliance 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 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

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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 noncompliance 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 221

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 welldocumented, 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 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 222

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. D54-04. 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

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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 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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