Caudal de demanda base (EPANET)

(SEC. 21)

Person in-charge of confiscated, seized and/or surrendered dangerous drugs

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 so confiscated, seized and/or surrendered, for proper disposition.

Chain of custody

Dangerous Drugs Board Regulation No. 1, Series of 2002, which implements R.A. No. 9165, 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” (People v. Dela Cruz, G.R. No. 176350, August 10, 2011).

NOTE: Ideally, the custodial chain would include testimony about every link in the chain or movements of the illegal drug, from the moment of seizure until it is finally adduced in evidence (Castro v. People, G.R. No. 193379, August 15, 2011).

Links that must be established in the chain of custody in a buy-bust situation

In People v. Kamad, the Court acknowledged that the following links must be established in the chain of custody in a buy-bust situation:

1. The seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer;

2. The turnover of the illegal drug seized by the apprehending officer to the investigating officer;

3. The turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and

4. The turnover and submission of the marked illegal drug seized from the forensic chemist to the court” (People v. Marcelino, G.R. No.

189325, June 15, 2011).

Crucial stage in the chain of custody under R.A. 9165 Crucial in proving chain of custody is the marking of the seized drugs or other related items immediately after they are seized from the accused. Marking after seizure is the starting point in the custodial link, thus, it is vital that the seized contraband are immediately marked because succeeding handlers of the specimens will use the markings as reference. The marking of the evidence serves to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of criminal proceedings, obviating switching, "planting,"

or contamination of evidence (People v. Mantalaba, G.R. No. 186227, July 20, 2011).

Marking

It means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the items seized. Long before Congress passed R.A. No.

9165, this Court has consistently held that failure of the authorities to immediately mark the seized drugs casts reasonable doubt on the authenticity of the corpus delicti. Marking after seizure is the starting point in the custodial link; hence, it is vital that the seized contraband be immediately marked because succeeding handlers of the specimens will use the markings as reference (People v Dela Cruz, G.R. No.

176350, August 10, 2011).

NOTE: In Sanchez, the Court explained that consistency with the chain of custody rule requires that the marking of the seized items be done:

1. In the presence of the apprehended violator, and 2. Immediately upon confiscation.

In People v. Manuel Resurreccion, 603 SCRA 510, it was ruled that “marking upon immediate confiscation” does not exclude the possibility that marking can be at the police station or office of the apprehending team (People v. Dela Cruz, G.R. No. 176350, August 10, 2011).

Persons who must be present during physical inventory and photography of the seized items The seized items must be physically inventoried and photographed in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her

1. Representative or counsel,

2. A representative from the media, and

3. The Department of Justice (DOJ), and 4. Any elected public official who shall be

required to sign the copies of the inventory and be given a copy thereof (Tibagong v People, G.R. No. 182178, August 15, 2011).

Q: In the crime of illegal possession of dangerous drugs, is the failure of the policemen to make a physical inventory and to photograph the two plastic sachets containing shabu render the confiscated items inadmissible in evidence?

A: No. In People v. Bralaan, it was ruled that non-compliance by the apprehending/buy-bust team with Sec. 21 is not fatal as long as there is justifiable ground therefore, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team.

Its non-compliance will not render an accused’s 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 (Imson v. People, G.R. No. 193003, July 13, 2011).

NOTE: In cases of dangerous drugs, what is important and necessary is for the prosecution to prove with moral certainty “that the dangerous drug presented in court as evidence against the accused be the same item recovered from his possession” (People v. Bautista, G.R. No. 191266, June 6, 2011).

Q: As a rule, non-compliance by the apprehending/buy-bust team with Sec. 21 of R.A.

9165 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. When will this provision not apply?

A: If there were not merely trifling lapses in the handling of the evidence taken from the accused but the prosecution could not even establish what procedure was followed by the arresting team to ensure a proper chain of custody for the confiscated prohibited drug (People v. Ulat y Aguinaldo, G.R. No.

180504, October 5, 2011).

Need for everyone who came into contact with the seized drugs to testify in court

There is no need for everyone who came into contact with the seized drugs to testify in court. There is nothing in R.A. 9165 or in its implementing rules, which requires each and everyone who came into

contact with the seized drugs to testify in court. As long as the chain of custody of the seized drug was clearly established to have not been broken and the prosecution did not fail to identify properly the drugs seized, it is not indispensable that each and every person who came into possession of the drugs should take the witness stand (People v. Amansec, G.R. No.

186131, December 14, 2011).

Q: Pamela, a high school student, was caught using shabu inside the campus of the school she is attending. Who shall have the authority to apprehend her?

A: All school heads, supervisors and teachers are deemed persons in authority and empowered to apprehend, arrest or cause the apprehension or arrest of any person who shall violate any of the said provisions of Article II of Dangerous Drugs Act, pursuant to Section 5, Rule 113 of the Rules of Court (Sec. 44, IRR R.A. 9165).

Instances when the school heads, supervisors and teachers deemed to be persons in authority in the apprehension, arrest or cause of arrest of person violating the Act

They shall be deemed persons in authority if they are in the school or within its immediate vicinity, or even beyond such immediate vicinity if they are in attendance at any school or class function in their official capacity as school heads, supervisors, and teachers (Sec. 44, IRR RA 9165).

Duties of school heads, supervisors and teachers if they caught a person violating the provisions of this Act

1. They shall effect the arrest of any person violating Article II of the Act and turn over the investigation of the case to the PDEA

2. They may summon the services of other law enforcement agencies to arrest or cause the apprehension or arrest of persons violating Article II of the Act

3. They shall be trained on arrest and other legal procedures relative to the conduct of arrest of violators of the Act along with student leaders and Parents Teachers Association (PTA) officials; and 4. They shall refer the students or any other violators

found to be using dangerous drugs to the proper agency/office (Sec. 44, IRR RA 9165).

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FA C U L T Y O F C^{I V I L} L^{A W} Promotion of “drug-free workplaces”

The drug-free workplaces are promoted by:

1. A National Drug-Free Workplace Abuse Prevention Program shall be formulated by a tripartite Task Force composed of representatives from the DOLE, workers’ and employers’ groups.

2. The Secretary of the DOLE shall issue a Department Order creating a Task Force consisting of tripartite and other agencies to formulate policies and strategies for the purpose of developing a National Action Agenda on drug abuse prevention in the workplace. Pursuant to the declared policy of the State and the national workplace policy, the DOLE shall issue a Department Order (DO) requiring all private companies to adopt and implement drug abuse prevention programs in the workplace, including the formulation of company policies.

3. Pursuant to the functions of the Board under Section 81 (a) of the Act, the existing Civil Service rules and policies needed to respond to drug abuse in the public sector shall be adopted (Sec. 47, IRR RA 9165).

Guidelines for the National Drug-Free Workplace Program to be formulated by the the Board and the DOLE

The Task Force shall develop a comprehensive National Drug-Free Workplace Program in accordance with the following guidelines:

1. All private sector organizations with ten (10) or more personnel shall implement a drug abuse prevention program.

a. The workplace program shall include advocacy and capability building and other preventive strategies including but not limited to: company policies, training of supervisors/managers, employee education, random drug testing, employee assistance program and monitoring and evaluation

b. The workplace program shall be integrated in the safety and health programs.

2. DOLE and labor and employers’ groups shall also encourage drug-free policies and programs for private companies with nine (9) workers or less.

3. 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 Book VI of the Labor Code.

4. Private sector organizations may extend the drug education program to the employees/personnel and immediate families to contribute in the promotion of a healthy drug-free family, community and society.

5. All private sector organizations shall display in a conspicuous place a billboard or streamer with a standard message of “THIS IS A DRUG-FREE WORKPLACE: LET’S KEEP IT THIS WAY!” or such other messages of similar import (Sec. 48, IRR RA 9165).

Inclusion of workplace drug abuse policies and programs as part of CBA

It is required that all labor unions, federations, associations; or organizations in cooperation with the respective private sector partners shall include in their collective bargaining or any similar agreements, joint continuing programs and information campaigns for the laborers similar to the programs provided under Section 47 of the Act with the end in view of achieving a drug-free workplace (Sec. 49, IRR RA 9165).

Procedure to be followed in abatement of drug related public nuisances

Any place or premises which have been used on two or more occasions as the site of the unlawful sale or delivery of dangerous drugs, or used as drug dens for pot sessions and other similar activities, may be declared to be a public nuisance, and such nuisance may be abated, pursuant to the following procedures:

1. Any city or municipality may, by ordinance, create an administrative board to hear complaints regarding the nuisances, to be composed of the following:

a. City/Municipal Health Officer as chairperson;

b. City/Municipal Legal Officer as member, provided that in cities/municipalities with no Legal Officer, the City/Municipal Administrator shall act as member; and c. The Local Chief of Police as member;

2. Any employee, officer, or resident of the city or municipality may bring a complaint before the administrative board after giving not less than three (3) days written notice of such complaint to the owner of the place or premises at his/her last known address;

3. Within three (3) days from receipt of the complaint, a hearing shall then be conducted by

the administrative board, with notice to both parties, and the administrative board may consider any evidence submitted, including evidence of general reputation of the place or premises;

4. The owner/manager of the premises or place shall also be given an opportunity to resent any evidence in his/her defense;

5. After hearing, the administrative board may declare the place or premises to be a public nuisance; and

6. The hearing shall be terminated within ten (10) days from commencement (Sec. 52, IRR RA 9165).

Persons sharing the cost of treatment and rehabilitation of a drug dependent who voluntarily submitted himself

The parent, 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 share the cost of treatment and rehabilitation of a drug dependent (Sec.

74, IRR RA 9165).

Cases where dependent has no parent, spouse, guardian or relative within fourth degree of consanguinity

In case a dependent has no parent, spouse, guardian or relative within the fourth degree of consanguinity, his/her rehabilitation shall be through the auspices of any government rehabilitation center (Sec. 74, IRR RA 9165).

Factors in determining costs for the sharing in cost of treatment and rehabilitation

In government rehabilitation centers, the following factors shall be taken into consideration in determining the share of the cost:

1. Family income;

2. Capacity of the province/city/municipality based on their income classification;

3. The cost of treatment and rehabilitation based on a center’s facilities, programs and services (Sec. 74, IRR RA 9165).

If the family income is within the poverty threshold A family whose income is within poverty threshold shall be fully subsidized by the government (Sec. 74, IRR RA 9165).

Duties of DOH in the treatment and rehabilitation of drug dependent

To ensure proper treatment and rehabilitation of drug dependents, the DOH shall perform the following:

a. Formulate standards and guidelines for the operation and maintenance of all treatment and rehabilitation centers nationwide;

b. Develop a system for monitoring and supervision of all drug rehabilitation centers nationwide;

c. Create programs which will advocate for the establishment of LGU-assisted rehabilitation facilities in each province;

d. Submit to the Department of Budget and Management (DBM) a budget for the establishment, and operation of drug rehabilitation centers; and

e. Facilitate the turn-over of all the rehabilitation centers from the PNP and NBI thru a Memorandum of Agreement that shall be signed within sixty (60) days after approval of this IRR (Sec. 75, IRR RA 9165).

PROGRAM FOR TREATMENT AND REHABILITATION