What constitutes a drug offense

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Persida Acosta

Persida Acosta

Dear PAO,
If a person is arrested because, purportedly, some drugs were found in his possession, is it possible for him to be charged for both the illegal possession of drugs and sale of drugs?
Shobe

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Dear Shobe,
Republic Act (R.A.) 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, encompasses several punishable acts involving dangerous drugs such as: the unauthorized importation of dangerous drugs, including any and all species of opium poppy regardless of the quantity and purity involved, or any controlled precursor and essential chemicals (Section 4); unauthorized sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drugs, including any and all species of opium poppy regardless of the quantity and purity involved, or any controlled precursor and essential chemical, or act as broker in any of those transactions (Section 5); maintenance of den, dive or resort where dangerous drugs or any controlled precursor and essential chemical are used or sold (Section 6); unauthorized manufacturing of dangerous drugs or any controlled precursor and essential chemical (Section 8); unauthorized or illegal diversion of any controlled precursor and essential chemical (Section 9); delivery, possession with intent to deliver, or manufacture with intent to deliver equipment, instrument, apparatus and other paraphernalia of dangerous drugs (Section 10); unauthorized possession of dangerous drugs (Section 11); unauthorized possession equipment, instrument, apparatus and other paraphernalia for any kind of use of dangerous drugs (Section 11); and the like.

It bears stressing that there are specific elements for each of the offenses punishable under R. A. 9165. All of the elements provided under the law must be met in order to hold a person criminally responsible for each offense.

Accordingly, the fact that a person who has been arrested was in possession of drugs at the time of his arrest does not necessarily mean that he or she is committing or has committed the offense of illegal possession of drugs. Neither can he be indicted for a violation of the law. In the same manner, a person who was found in possession of drugs may not necessarily be implicated to the commission of the offense of illegal sale of drugs.

The Supreme Court has already ruled that in order for the crime of illegal possession of drugs to be committed, it is primordial to establish that: (1) the accused is in possession of the object identified as a prohibited or regulatory drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possessed the said drug (People vs. Diwa, 692 SCRA 260). To establish the offense of illegal sale of drugs, it must be clearly demonstrated that: (1) the accused sold and delivered a prohibited drug to another; and (2) he knew that what was sold and delivered was a prohibited drug (People vs. Diwa, 692 SCRA 260).

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 dearpao@manilatimes.net

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