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POSSESSION OF DRUGS – For a prosecution for illegal possession of a dangerous drug to prosper, it must be shown that (a) the accused was in possession of an item or an object identified to be a prohibited or regulated drug; (b) such possession is not authorized by law;

and (c) the accused was freely and consciously aware of being in possession of the drug (David vs. People, Gr No. 181861, October 17, 2011, ).

This crime 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 (Del Castillo vs. People, GR No. 185128, January 30, 2012, ).

Mere possession of a dangerous drug per se constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation of such possession - the onus probandi is shifted to the accused, to explain the absence of knowledge or animus possidendi (Miclat, Jr. vs. People, GR No. 176077, August 31, 2011, ).

KNOWLEDGE - Is knowledge an element of dangerous drugs despite this crime is malum prohibitum? Yes. For illegal possession of dangerous drugs, the prosecution must establish that the accused freely and consciously possessed the dangerous drug without authority. However, mere possession of dangerous drug constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of any satisfactory explanation (Asiatico vs. People, G.R. No. 195005, September 12, 2011).

ATTEMPTED SALE - “A”, poseur buyer, asked “X” if he has available “shabu” for sale.

“X” answered in the affirmative and showed to “A” a plastic sachet containing shabu. “A”

immediately identified himself as a policeman, and then, apprehended “X” and confiscated the

“shabu” from his pocket. What is the crime committed by “X”? “X” is liable for attempted sale of shabu punishable under Section 26 of RA 9165. Attempt to sell shabu was shown by the overt act of appellant therein of showing the substance to the poseur-buyer. The sale was aborted when the police officers identified themselves and placed appellant under arrest (People vs.

Figueroa, G.R. No. 186141, April 11, 2012).

DELIVERY - Is the absence of marked money as evidence fatal to prosecution of sale and delivery of dangerous drugs? No. The law defines deliver as “a person’s act of knowingly passing a dangerous drug to another with or without consideration.” Considering that the appellant was charged with the sale and the delivery of prohibited drugs, the consummation of the crime of delivery of marijuana may be sufficiently established even in the absence of the marked money (People vs. Domingcil, G.R. No. 140679, January 14, 2004).

LACK OF COORDINATION WITH PDEA - Silence of the law as to the consequences of the failure on the part of the law enforcers to seek the prior authority of the PDEA cannot be interpreted as a legislative intent to make an arrest without such PDEA participation illegal or evidence obtained pursuant to such an arrest inadmissible (People vs. Clarite, G.R.

No. 187157, February 15, 2012). Lack of coordination with the PDEA will not invalidate a buy-bust operation. Such coordination is not an indispensable requirement in buy-buy-bust operations. Neither Section 86 of Republic Act No. 9165 nor its Implementing Rules and Regulations make PDEA’s participation a condition sine qua non for the conduct of a buy-bust operation (People vs. Mendosa, G.R. No. 189327, February 29, 2012)

CONFIRMATORY TEST - In Ambre vs. People, G.R. No. 191532. August 15, 2012 - In no instance did accused challenge, at the RTC, the supposed absence of confirmatory drug test conducted on her. Accused only questioned the alleged omission when she appealed her conviction before the CA. It was too late in the day for her to do so. Well entrenched is the rule that litigants cannot raise an issue for the first time on appeal as this would contravene the basic rules of fair play and justice.

PHOTOGRAPHY AND INVENTORY – Under Section 21 of RA No. 9165, 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; However, the Implementing rules of RA No. 9165 provides that non-compliance with these requirements under justifiable 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.

Non-compliance with the requirements of Section 21 of R.A. No. 9165 will not necessarily render the items seized or confiscated in a buy-bust operation inadmissible. Strict compliance with the letter of Section 21 is not required if there is a clear showing that the integrity and the evidentiary value of the seized items have been preserved, i.e., the items being offered in court as exhibits are, without a specter of doubt, the very same ones recovered in the buy-bust operation. Hence, once the possibility of substitution has been negated by evidence of an unbroken and cohesive chain of custody over the contraband, such contraband may be admitted and stand as proof of the corpus delicti notwithstanding the fact that it was never made the subject of an inventory or was photographed pursuant to Section 21 (1) of Republic Act No. 9165 (David vs. People, Gr No. 181861, October 17, 2011, ; Marquez vs. People, G.R.

No. 197207, March 13, 2013; People vs. Morate, GR No. 201156, January 29, 2014; People vs.

Ladip, GR No. 196146, March 12, 2014; People vs. Bis, GR No. 191360, March 10, 2014).

In People vs. Gonzales, G.R. No. 182417, April 3, 2013 - By way of exception, Republic Act No. 9165 and its IRR both state that the non-compliance with the procedures thereby delineated and set would not necessarily invalidate the seizure and custody of the dangerous drugs provided there were justifiable grounds for the non-compliance, and provided that the integrity of the evidence of the corpus delicti was preserved. But the non-compliance with the procedures, to be excusable, must have to be justified by the State’s agents themselves.

Considering that PO1 Dimla tendered no justification in court for the non-compliance with the procedures, the exception did not apply herein. The absolution of accused should then follow, for we cannot deny that the observance of the chain of custody as defined by the law was the only assurance to him that his incrimination for the very serious crime had been legitimate and insulated from either invention or malice. In this connection, the Court states that the unexplained non-compliance with the procedures for preserving the chain of custody of the dangerous drugs has frequently caused the Court to absolve those found guilty by the lower courts.

CHAIN OF CUSTODY – 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 (People vs.

Constantino, Jr. GR No. 199689, March 12, 2014).

Thus, the following links must be established in 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 turn over of the illegal drug seized by the apprehending officer to the investigating officer; third, the turn over by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turn over and submission of the marked illegal drugs seized from the forensic chemist to the court (People vs. Constantino, Jr. GR No. 199689, March 12, 2014)

MARKING - Crucial in proving the chain of custody is the marking of the seized dangerous drugs or other related items immediately after they are seized from the accused, for the marking upon seizure is the starting point in the custodial link that succeeding handlers of the evidence will use as reference point. Moreover, the value of marking of the evidence is to separate the marked evidence from the corpus of all other similar or related evidence from the time of seizure from the accused until disposition at the end of criminal proceedings, obviating switching, “planting” or contamination of evidence. A failure to mark at the time of taking of initial custody imperils the integrity of the chain of custody that the law requires (People vs.

Constantino, Jr. GR No. 199689, March 12, 2014)

The rule requires that the marking of the seized items should be done in the presence of the apprehended violator and immediately upon confiscation to ensure that they are the same items that enter the chain and are eventually the ones offered in evidence. There are occasions when the chain of custody rule is relaxed such as when the marking of the seized items immediately after seizure and confiscation is allowed to be undertaken at the police station rather than at the place of arrest for as long as it is done in the presence of an accused in illegal drugs cases. However, even a less-than-stringent application of the requirement would not suffice to sustain the conviction in this case. There was no categorical statement from any of the prosecution witnesses that markings were made, much less immediately upon

confiscation of the seized items. There was also no showing that markings were made in the presence of the accused in this case (Lopez vs. People, GR No. 188653, January 29, 2014).

Drug peddling in schools is prevalent; the scenario attending this case is likely to be repeated many times. To impose on school personnel the observance of the same procedure required of law enforces (like marking) – processes that are unfamiliar to them – is to set a dangerous precedent that may eventually lead to the acquittal of many drug peddlers. To our mind, the evidentiary value of the seized specimen remains intact as long as the school personnel who had initial contact with the drug/s was able to establish that the evidence had not been tampered with when he handed it to the police (Marquez vs. People, G.R. No. 197207, March 13, 2013)

PARAPHERNALIA WITH TRACES OF SHABU – In People vs. Matinez, G.R. No.

191366, December 13, 2010 - This Court notes the practice of law enforcers of filing charges under Sec. 11 in cases where the presence of dangerous drugs as basis for possession is only and solely in the form of residue, being subsumed under the last paragraph of Sec. 11.

Although not incorrect, it would be more in keeping with the intent of the law to file charges under Sec. 15 instead in order to rehabilitate first time offenders of drug use, provided that there is a positive confirmatory test result as required under Sec. 15. The minimum penalty under the last paragraph of Sec. 11 for the possession of residue is imprisonment of twelve years and one day, while the penalty under Sec. 15 for first time offenders of drug use is a minimum of six months rehabilitation in a government center. To file charges under Sec. 11 on the basis of residue alone would frustrate the objective of the law to rehabilitate drug users and provide them with an opportunity to recover for a second chance at life.

In order to effectively fulfill the intent of the law to rehabilitate drug users, this Court thus calls on law enforcers and prosecutors in dangerous drugs cases to exercise proper discretion in filing charges when the presence of dangerous drugs is only and solely in the form of residue and the confirmatory test required under Sec. 15 is positive for use of dangerous drugs. In such cases, to afford the accused a chance to be rehabilitated, the filing of charges for or involving possession of dangerous drugs should only be done when another separate quantity of dangerous drugs, other than mere residue, is found in the possession of the accused as provided for in Sec. 15.

PENALTY FOR POSSESSION OF MARIJUANA AND SHABU -

Possession of different kinds of dangerous drugs in a single occasion constitutes a single offense of possession of dangerous drugs (David vs. People, G.R. No. 181861, October 17, 2011).

PLANTING OF EVIDENCE - As a general rule, planting of evidence to incriminate an innocent person constitutes the crime of incriminating an innocent person under Article 363 of RPC. However, if the incriminatory evidence planted is dangerous drugs or unauthorized explosives, loose firearm, the crime committed is planting of evidence under RA 9165 for the dangerous drug, PD 1866 as amended by RA 9516 for the explosive and RA No. 10591.

PLEA BARGAINING - Section 23 of RA No. 9165, any person charged under any crime involving dangerous drugs regardless of the imposable penalty shall not be allowed to avail of the provision on plea-bargaining.