Presence in a place where banned drugs found not enough to implicate visitor


Persida Acosta

Dear PAO,
My cousin was arrested last month at his friend’s house and was charged with illegal possession of prohibited drugs. According to him, no drugs were found in his possession but he was charged nonetheless because shabu was found in the living room where they were hanging out. May I know if he is really criminally liable for illegal possession of prohibited drugs even though no drugs were found in his possession?

Dear Kaiser,
Illegal possession of prohibited or dangerous drugs is punishable under Section 11 of Republic Act 9165, or the Comprehensive Dangerous Drugs Act of 2002, which punishes any person who, unless authorized by law, shall possess any dangerous drug. But just like any other crime, there are elements that must be proved in illegal possession of dangerous drugs. These are: (1) the accused is in possession of the object identified as a prohibited or regulated drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the drug. Absence of any of the elements would negate criminal responsibility on the part of the alleged offender, except if his acts would constitute another crime. In the latter case, the alleged offender may be held criminally liable albeit for a different crime.

Concerning the first element, the Supreme Court (SC) has ruled that actual physical possession is not necessary for the crime of illegal possession of dangerous drugs. According to the SC, “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.” (People v. Tira, G.R. No. 139615, May 28, 2004; ponente, former Associate Justice Romeo Callejo Sr.)

The second element simply means that the person is not authorized by law to have the dangerous drugs, while the third element is free and conscious possession of the dangerous drug, or what is referred to as intent to possess or “animus possidend.” This means that the possession must be with the knowledge of the accused, which the courts determine on a case-to-case basis taking into consideration the prior or contemporaneous acts of the accused, as well as the surrounding circumstances (People vs. Dela Cruz, G.R. No. 182348, November 20, 2008; ponente, Associate Justice Presbitero Velasco Jr.)

On this score, jurisprudence provides that the mere fact that the accused is in the place where the prohibited drugs were found is NOT sufficient to show “animus possidendi” through constructive possession.

In the case of People vs. Del Castillo (G.R. No. 153254, September 30, 2004 ; ponente, former Associate Justice Ma. Alicia Austria-Martinez), the Supreme Court acquitted an accused who was a mere visitor at the place where the prohibited drugs were found after the prosecution failed to present evidence that she (accused) has control or dominion of the seized drugs, or of the place where the same were found, considering that the drugs was not found together with her belongings. Similarly, in the case of People vs. Dela Cruz cited above, the SC acquitted the accused who was inside the room where the prohibited drugs were found and talking to the person who was the subject of a police operation for failure to prove “animus possidendi” or absent any proof that he is involved in drug dealing.

Based on the foregoing, the fact that no drugs were found in your cousin’s possession, which we take to mean that no drugs were found in his actual possession, does not automatically negate his criminal responsibility for illegal possession of dangerous drugs. He may still be held criminally liable if he has constructive possession of the seized dangerous drugs. Yet, being simply a guest or visitor at the place where the dangerous drugs were found is not enough to implicate him in the crime. It must be shown that he has “animus possidendi.” If the charge against your cousin does not show “animus possidendi,” taking into account his prior or contemporaneous acts, he cannot be held liable for the crime of illegal possession of dangerous drugs.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to


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