Criminal Law Book 2 – Title Five
CRIMES RELATED TO OPIUM AND OTHER PROHIBITED DRUGS (190-194)
THE DANGEROUS DRUGS ACT OF 1972
(RA No. 6425, as amended)
I. Acts Punishable:
- importation of prohibited drugs
- sale, administration, delivery, distribution and transportation of prohibited drugs
- maintenance of a den, dive or resort for prohibited drug users
- being employees or visitors of drug den
- manufacture of prohibited drugs
- possession or use
- cultivation of plants
- failure to comply with provisions relative to keeping of records of prescription
- unnecessary prescription
- possession of opium pipe and other paraphernalia
- Importation, sale, etc. of regulated drugs
- Importation of prohibited/regulated drugs.
- Sale, administration, delivery, distribution and transaction of prohibited/regulated drugs.
Qualifying Circumstances – if the victim of the offense is a minor or should a prohibited/regulated drug involve in any offense under this section be the proximate cause of the death of a victim thereof, the maximum penalty herein shall be imposed.
- Maintenance of a den, dive, or resort for prohibited/regulated drug users.
Qualifying Circumstance – where a prohibited/regulated drug is administered, delivered, or sold to a minor who is allowed to use the same in such place, or should a prohibited drug be the proximate cause of the death of the person using the same in such den, dive or resort, the maximum of the penalty shall be imposed.
- Manufacture of prohibited/regulated drugs.
- Possession of prohibited/regulated drugs.
· Cultivation of plants which are sources of prohibited drugs.
a Note: The land/portions thereof and/or greenhouses in which any of the said plants is cultivated or cultured shall be confiscated and escheated to the State, unless the owner thereof can prove that he did not know of such cultivation or culture despite the exercise of due diligence on his part.
b Qualifying Circumstance – if the land involved is part of the public domain, the maximum of the penalty herein provided shall be imposed.
· Failure to keep records of prescription, sales, purchases, acquisitions and/or deliveries of prohibited/regulated drugs
Pharmacist, Physician, Dentist, Veterinarian, Manufacturer, Wholesaler, Importer, Distributor, Dealer, Retailer
· Unlawful prescription of prohibited/regulated drugs
· Unnecessary prescription of prohibited/regulated drugs
Persons Liable: Physician or dentist who shall prescribe any prohibited/regulated drug for any person whose physical/physiological condition does not require the use of thereof.
· Possession of opium pipe, equipment, apparatus or any paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or otherwise using opium or any other prohibited drug, shall be prima facie evidence that the possessor has smoked, consumed, administered to himself, injected or used a prohibited drug.
· Attempt and conspiracy to commit the following offenses:
a Importation of dangerous drugs
b Sale, administration, delivery, distribution and transportation of dangerous drugs
c Maintenance of a den, dive or resort for prohibited drugs
d Manufacture of dangerous drugs
e Cultivation or culture of plants which are sources of prohibited drugs
- Other persons liable:
a If the violation of the Act is committed by a partnership, corporation, association or any judicial person, the partner, president, director, or manager who consents to or knowingly tolerates such violation shall be held criminally liable as co-principal.
b Partner, president, director, manager, officer or stockholder, who knowingly authorizes, tolerates, or consents to the use of a vehicle, vessel, or aircraft as an instrument in the importation, sale, delivery, distribution or transportation of dangerous drugs, or to the use of their equipment, machines or other instruments in the manufacture of any dangerous drugs, if such vehicle, vessel, aircraft, equipment, or other instrument, is owned or under the control and supervision of the partnership, corporation, association or judicial entity to which they are affiliated.
c Government official, employee or officer who is found guilty of “planting” any dangerous drugs in the person or in the immediate vicinity of another as evidence to implicate the latter.
II. For the purpose of enforcing the provisions of this Act, all school heads, supervisors and teachers shall be deemed to be persons in authority and, as such, are vested with the power to apprehend, arrest, or cause the apprehension or arrest of any person who shall violate any of the said provision.
- NOTE: They shall be considered as persons in authority id they are in the school or within its immediate vicinity, or beyond such immediate vicinity of they are in attendance in any school or class function in their official capacity as school heads, supervisors or teachers.
- Any teacher or school employee who discovers or finds that any person in the school or within its immediate vicinity is violating this Act shall have the duty to report the violation to the school head or supervisor who shall, in turn, report the matter to the proper authorities. Failure to report in either case shall, after hearing, constitute sufficient cause for disciplinary action. (Sec. 28)
- III. Rules:
- Voluntary submission of a drug dependent to confinement, treatment and rehabilitation by the drug dependent himself or through his parent, guardian or relative within the 4th civil degree of consanguinity or affinity, in a center and compliance with such conditions therefor as the Dangerous Drugs Board may prescribe shall exempt from criminal liability for possession or use of the prohibited/regulated drug.
- Should the drug dependent escape from the center, he may submit himself for confinement within 1 week from the date of his escape, of his parent guardian or relative may, within the same period surrender him for confinement.
- Upon application of the Board, the Court shall issue an order for recommitment if the drug dependent does not resubmit himself for confinement or if he is not surrendered for recommitment.
- If, subsequent to such recommitment, he should escape again, he shall no longer be exempt from criminal liability for the use or possession of any dangerous drug.
- If a person charged with an offense is found by the fiscal or by the Court at any stage of the proceedings, to be a drug dependent, the fiscal or court as the case may be, shall suspend all further proceedings and transmit records of the case to the Board.
- After his rehabilitation, he shall be prosecuted for such violation. In case of conviction, the judgement shall, if the accused is certified by the treatment and rehabilitation center to have maintained good behavior, indicate that he shall be given full credit for the period he was confined in the center.
NOTE: When the offense is possession or use of dangerous drugs and the accused is not a recidivist, the penalty thereof shall be deemed to have been served in the center upon his release therefrom.
- The period of prescription of the offense charged shall not run during the time that the respondent/accused is under detention or confinement in a center.
- Requisites of suspension of sentence for first offense in a minor:
- If accused is a minor (under 18 years of age at the time of the commission of the offense but not more than 21 years of age when the judgement should have been promulgated.
- He has not been previously convicted of violating any provision of this Act or of the RPC or placed on probation.
- Sentence shall be deferred and the accused shall be placed on probation under the supervision of the Board.
- In case of violation of conditions of pardon, court shall pronounce judgement of conviction and he shall serve sentence.
- If accused did not violate conditions of probation, case shall be dismissed upon expiration of the designated period.
a Cultivation of plants – Sec 9 – land, portions of land, greenhouse on which any of the plants is cultivated – confiscated and escheated to the State. UNLESS: owner can prove that he had no knowledge of the cultivation despite due diligence
b If land is part of the public domain – maximum penalty imposed
c Possession of opium pipe and other paraphernalia – prima facie evidence that the possessor has smoked, consumed, administered himself, used prohibited drugs
d Drug penalties of Reclusion Perpetua to Death or a fine of Php 500,000 to 10M apply when:
Opium 40 grams up
Morphine 40 grams up
Shabu 200 grams up
Heroin 40 grams up
Indian hemp 750 grams up
MJ resin 50 grams up
Cocaine 40 grams up
Other drugs Quantity far beyond therapeutic requirement
(if quantity is less than prescribed – penalty is PC to RP depending upon the quantity)
e RA 7659 – PD 1619 – Possession and Use of Volatile Substances
- mere attempt to sell, import – already a crime under Article 6
- conspiracy to sell, deliver, import – already a crime under Article 8
f Buy Bust Operation – no law or rule to require policemen to adopt a uniform way of identifying BUY MONEY (P v. Abedes)
g Absence of ultraviolet power is not fatal in the prosecution
h Transportation/importation of MJ – immaterial whether there may or may not be a distinction for the MJ
i Distinguish Entrapment and Instigation:
- If prosecution can prove the crime without presenting the informer or asset – not necessary because their testimonies are merely corroborative. Poseur buyer – it depends on whether the prosecution can prove the crime without their testimonies (P v. Rosalinda Ramos)
- Under the RA, special aggravating circumstance if a crime has been committed while the accused was high on drugs (P v. Anthony Belgar)
- Delivery or Sale of Prohibited Drugs – the accused must be aware that what he is selling or delivering was prohibited drug. But the moment the fact of sale or delivery is proved by prosecution, the burden to prove that the accused is not aware that drugs are prohibited falls on the defense (P v. Aranda)
- P v. Angelito Manalo – burden of proving the authority to possess shabu is a matter of defense
- P v. Hilario Moscaling – court may take judicial notice of the word “shabu”
- Criminal liabilities of a policeman who sold the drugs confiscated from a pusher: violation of RA 6425 and malversation under RPC.
j Planting evidence – to implicate another
k Buy Bust Operation – form of entrapment (P v. Alberto) – not necessary to have prior police surveillance (P v. Carlos Franca)
l Possession – constructive or actual – not necessary to adduce the marked money as evidence (P v. Romeo Macara)
m Separate crimes – sale/possession of MT found in his possession after he was frisked but he can’t be convicted for possession of MJ that he sold
n If victim is minor or drug is proximate cause of death – max penalty is imposed under Sec 4, 5, 15, 15-a
- If imposable penalty: RP to death – no plea bargaining
- If offender: government official, employees, officers or found guilty of planting evidences – same penalty
- First offense of a minor – suspension of sentence
- under 18 at time of commission but not more than 21 at time when judgment was promulgated
- found guilty of possession or use of prohibited or regulated drugs
- not been previously convicted of violating any provision of this Act or the RPC
- not been placed on probation
- defer sentence, place on probation for 6 months to 1 year
- violation of probation – pronounce sentence – convict and serve sentence
- no violation – discharge him and dismiss the proceeding
- if minor is drug dependent – commit to a center for treatment and rehabilitation
Criminal Law Book 2 Reviewer
Ateneo Central Bar Operations 2001