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SPECIAL PENAL LAWS

BATAS PAMBANSA BLG. 22 - AN ACT PENALIZING THE MAKING OR DRAWING AND ISSUANCE OF A CHECK WITHOUT SUFFICIENT FUNDS OR CREDIT AND FOR OTHER PURPOSES

Check - check is a bill of exchange drawn on a bank and payable on demand. It is a written order on a bank, purporting to be drawn against a deposit of funds for the payment of all events, of a sum of money to a certain person therein named or to his order or to cash and payable on demand. (Lozano vs. Martinez)

Bill of Exchange

Bouncing Check a check that has no funds or credit to cover its amount. (ex. DAIF Drawn against insufficient funds / NSF no sufficient funds)

Postdated Checks a check that is dated after it is issued and delivered. It is not to be encashed immediately but on the date after its issuance or delivery.

Purpose of BP 22 - To put a stop to the harmful practice of putting valueless commercial papers in circulation, multiplied a thousand fold, which can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest. (Lozano vs. Martinez)

Constitutionality of BP 22 - The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by the law. The law punishes the act not as an offense against property, but an offense against public order. It may be constitutionally impermissible for the legislature to penalize a person for non- payment of a debt ex contractu But certainly it is within the prerogative of the lawmaking body to proscribe certain acts deemed pernicious and inimical to public welfare. Acts mala in se are not the only acts which the law can punish. An act may not be considered by society as inherently wrong, hence, not

malum

that it inflicts on the

in se but because of the harm

community, it can be outlawed and criminally punished as malum prohibitum. The state can do this in the exercise of its police power. The police power of the state has been described as "the most essential, insistent and illimitable of powers" which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. (Lozano vs. Martinez)

Acts Punished Under BP 22

1. Any person who makes or draws and issues any check to

apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.

2. Having sufficient funds in or credit with the drawee bank

when he makes or draws and issues a check, shall fail to keep sufficient funds or to maintain a credit to cover the full amount of the check if presented within a period of ninety (90) days from the date appearing thereon, for which reason it is dishonored by the drawee bank.

Imposable Penalties under BP 22

1. Imprisonment of not less than thirty days but not more than one (1) year or

2. A fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or

3. Both such fine and imprisonment at the discretion of the court.

Clarification on Penalties - Circular 13-2001 If there is good faith or a clear mistake on the part of the accused and he is a first time offender, or the issuance of the check was the offshoot of a legitimate business transaction, imposition of fine alone should be considered as the more appropriate penalty.

Persons Liable Under BP 22

1. Pesonal Checks the signatory/ies of the check.

2. Corporate Checks the person/s who actually signed the check.

But take not of Lao vs. CA case - the accused, as the Court found, had merely been made by her employer, Premiere Investment House, to countersign checks in bank. The accused was a mere employee who did not have anything to do with the issuance of checks for the company. She did not know to whom the checks would be paid as the names of payees were written only later by the head of operations. Moreover, no notice of dishonor was given to her as required by B.P. Blg. 22 ?2. It could thus rightly be concluded that the accused issued checks to apply to account not knowing that at the time of issuance funds were insufficient to pay for the checks

Rules on Notice of Dishonor Must be in writing and given to the accused personally. (ex. given to the signatory/ies of the check in case of personal check / given to the person/s who actually signed the check in case of corporate checks)

BP 22 vs. Estafa

 

BP 22

Estafa

1.

Endorser is not liable

1. Endorser who acted with

2

 

deceit

knowing that the

check is worthless will be criminally liable.

2.

Malum prohibitum

2. Malum in se

 

3.

Issuance of check is for

3. It is the means to obtain

value or on account

the

valuable

consideration

from the payee (debt is not pre-existing)

4.

Deceit and damage are

4.

False pretenses or deceit

not elements of the crime, the gravamen of the offense is the issuance of worthless checks.

and damage, or at least intent to cause damage are essential and the false pretenses must be prior to or simultaneous with the damage caused.

5.

The drawer is given 5

5.

Given

3

days

after

days after receiving notice of dishonor within which to pay or make arrangements for payment.

receiving notice of dishonor.

6.

There are no funds at the

6.

There are no

funds or

time of issuance or at the time of presentment if made within 90 days.

there are insufficient funds

at the time of issuance.

 

7.

The maker or drawer and

7.

Not necessary that the

issuer knows at the time of issue that he does not have sufficient funds in or credit

drawer should know at the time that he issued the check that the funds deposited in the bank were not sufficient to cover the

amount of the check.

with the drawee bank for the payment of the check in full.

Nature of BP 22 as Transitory Crime If all the acts material and essential to the crime and requisite of its consummation occurred in one municipality or territory, the court therein has the sole jurisdiction to try the case. There are certain crimes in which some acts material and essential to the crimes and requisite to their consummation occur in one municipality or territory and some in another, in which event, the court of either has jurisdiction to try the cases, it being understood that the first court taking cognizance of the case excludes the other. These are the so-called transitory or continuing crimes under which violation of B.P. Blg. 22 is categorized. In other words, a person charged with a transitory crime may be validly tried in any municipality or territory where the offense was in part committed. (Lim vs. CA)

Valid Defenses Against BP 22

1. Forgery of the check as when the signature appearing thereon was made without the authority of the person (whose signature appears in it).

2. Prescription termination of the right to prosecute after the lapse of a definite period from the commission of the crime. Action for BP 22 prescribes after 4 years beginning from the lapse of 5 banking days from notice of dishonor.

3. Duplicity of Offense a single information which charges more than one offense. As when the

information for estafa embodies all the elements of any of the offenses under BP 22.

4. Failure to bring the accused for trial within the time limit set by the Speedy Trial Act and the Rules of Criminal Procedure.

5. Lack of Necessary Signature/s as when there is a need for the signature of the authorized officers of a corporation.

6. Failure to present the check for payment within 90 days as when the check was presented after 90 days.

7. Dishonor with a mere stamp in the check “stop payment” - Notwithstanding receipt of an order to stop payment, the drawee shall state in the notice that there were no sufficient funds in or credit with such bank for the payment in full of such check, if such be the fact.

8. Lack of Notice of Dishonor

9. Lack or illegal consideration in the issuance of check ex. Check was issued by the family of the kidnap victim to the kidnapper for ransom.

Lozano vs. Martinez, 146 SCRA 324

Facts: The constitutionality of Batas Pambansa Bilang 22 (BP 22 for short), popularly known as the Bouncing Check Law, which was approved on April 3, 1979, is the sole issue presented by these petitions for decision. The question is definitely one of first impression in our jurisdiction. These petitions arose from cases involving prosecution of offenses under the statute. The defendants in those cases moved seasonably to quash the informations on the ground that the acts charged did not constitute an offense, the statute being unconstitutional. The motions were denied by the respondent trial courts, except in one case, which is the subject of G. R. No. 75789, wherein the trial court declared the law unconstitutional and dismissed the case. The parties adversely affected have come to us for relief.

Issues: Main Issue W/N BP 22 is unconstitutional. (1) W/N BP 22 offends the constitutional provision forbidding imprisonment for debt. (2) W/N it impairs freedom of contract. (3) W/N it contravenes the equal protection clause. (4) W/N it unduly delegates legislative and executive powers.

Held: (1) The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by the law. The law punishes the act not as an offense against property, but an offense against public order. It may be constitutionally impermissible for the legislature to penalize a person for non-payment of a debt ex contractu But

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certainly it is within the prerogative of the lawmaking body to proscribe certain acts deemed pernicious and inimical to public welfare. Acts mala in se are not the only acts which the law can punish. An act may not be considered by society as inherently wrong, hence, not malum in se but because of the harm that it inflicts on the community, it can be outlawed and criminally punished as malum prohibitum. The state can do this in the exercise of its police power. The police power of the state has been described as "the most essential, insistent and illimitable of powers" which enables it to prohibit all things hurtful to the comfort, safety and welfare of society xxx we find the enactment of BP 22 a valid exercise of the police power and is not repugnant to the constitutional inhibition against imprisonment for debt. xxx As stated elsewhere, police power is a dynamic force that enables the state to meet the exigencies of changing times. There are occasions when the police power of the state may even override a constitutional guaranty. (2) We find no valid ground to sustain the contention that BP 22 impairs freedom of contract. The freedom of contract which is constitutionally protected is freedom to enter into "lawful" contracts. Contracts which contravene public policy are not lawful. Besides, we must bear in mind that checks can not be categorized as mere contracts. It is a commercial instrument which, in this modem day and age, has become a convenient substitute for money; it forms part of the banking system and therefore not entirely free from the regulatory power of the state. (3) Neither do we find substance in the claim that the statute in question denies equal protection of the laws or is discriminatory, since it penalizes the drawer of the check, but not the payee. It is contended that the payee is just as responsible for the crime as the drawer of the check, since without the indispensable participation of the payee by his acceptance of the check there would be no crime. This argument is tantamount to saying that, to give equal protection, the law should punish both the swindler and the swindled. The petitioners' posture ignores the well-accepted meaning of the clause "equal protection of the laws." The clause does not preclude classification of individuals, who may be accorded different treatment under the law as long as the classification is no unreasonable or arbitrary. 34 (4) It is also suggested that BP 22 constitutes undue or improper delegation of legislative powers, on the theory that the offense is not completed by the sole act of the maker or drawer but is made to depend on the will of the payee. If the payee does not present the check to the bank for payment but instead keeps it, there would be no crime. The logic of the argument stretches to absurdity the meaning of "delegation of legislative power." What cannot be delegated is the power to legislate, or the power to make laws. 35 which means, as applied to the present case, the power to define the offense sought to be punished and to prescribe the penalty. By no stretch of logic or imagination can it be said that the power to define the crime and prescribe the penalty therefor has been in any manner delegated to the payee. Neither is there any provision in the statute that can be construed, no matter how remotely, as undue delegation of executive power. The

suggestion that the statute unlawfully delegates its enforcement to the offended party is farfetched.

Vaca vs. CA, 298 SCRA 656 Facts: Petitioner Eduardo R. Vaca is the president and owner of Ervine while his son-in-law, petitioner Fernando Nieto, is the firm's purchasing manager. On March 10, 1988, petitioners issued a check for P10,000.00 to the General Agency for Reconnaissance, Detection, and Security, Inc. (GARDS) in partial payment of the security services rendered by GARDS to Ervine. The check was drawn on the China Banking Corporation (CBC). When deposited in the Philippine Commercial International Bank (PCIBank) branch at Shaw Boulevard, Mandaluyong, the check was dishonored for insufficiency of funds. GARDS wrote Ervine a letter in which it demanded payment in cash of the amount of the check within seven days from notice. The letter was received by Ervine on the same day, but petitioners did not pay within the time given. On April 13, 1988, petitioners issued a check for P19,860.16 to GARDS. The check was drawn on the Associated Bank. The voucher accompanying it stated that the check was to replace the dishonored check, the P9,860.16 balance being partial payment for Ervine's outstanding account. The check and the voucher were received by a GARDS messenger, Nolan C. Pena, on April 15, 1988, but GARDS did not return the dishonored check xxx RTC and CA ruled against the petitioners.

Issues: (1) W/N the maker’s knowledge of insufficiency of funds is presumed. (2) W/N the issuance of another check will negate the presumption. (3) W/N damage to the payee is essential (affidavit of desistance). (4) W/N the imposition of imprisonment and fine is proper.

Held: (1) The elements of the offense penalized under B.P. Blg. 22 are:

1. making, drawing, and issuance of any check to apply to

account or for value;

2. knowledge of the maker, drawer, or issuer that at the time of

issue he does not have sufficient funds in or credit with the

drawee bank for the payment of the check in full upon its presentment; and

3. subsequent dishonor of the check by the drawee bank for

insufficiency of funds or credit, or dishonor of the check for the

same reason had not the drawer, without any valid cause, ordered the bank to stop paymnent. The maker's knowledge is presumed from the dishonor of the check for insufficiency of funds. (2) In this case, after being notified on March 29, 1988 of the dishonor of their previous check, petitioners gave GARDS a check for P19,860.16. They claim that this check had been intended by them to replace the bad check they had previously issued to the GARDS. Based on the testimony of a GARDS accountant, however, the Court of Appeals found that the check was actually payment for two bills, one for the period of January 16 to January 31, 1988 in the amount of P9,930.08

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and another one for the period of March 16 to March 31, 1988 in the same amount. But even if such check was intended to replace the bad one, its issuance on April 13, 1988 15 days after petitioners had been notified on March 29, 1988 of the dishonor of their previous check cannot negate the presumption that petitioners knew of the insufficiency of funds to cover the amount of their previous check. Sec. 2 of B.P. Blg. 22 requires that such check be given within five (5) days from the notice of dishonor to them. (3) The affidavit of desistance of the GARDS president deserves no more than passing mention. The claim that this case was simply the result of a misunderstanding between GARDS and petitioners and that the former did not really suffer any damage from the dishonor of the check is flimsy. After prosecuting the case below with tenacity, complainants going so far as to file another complaint after their first one had been dismissed, it is trifling with this Court for complainants to now assert that the filing of their case was simply a mistake. It is for reasons such as this the affidavit of desistance, like retractions, are generally disfavored. The affidavit in this case, which was made after petitioners' conviction, is nothing but a last-minute attempt to save them from punishment. Even if the payee suffered no damage as a result of the issuance of the bouncing check, the damage to the integrity of the banking system cannot be denied. Damage to the payee is not an element of the crime punished in B.P. Blg. 22. (4) Petitioners are first-time offenders. They are Filipino entrepreneurs who presumably contribute to the national economy. Apparently, they brought this appeal, believing in all good faith, although mistakenly, that they had not committed a violation of B.P. Blg. 22. Otherwise, they could simply have accepted the judgment of the trial court and applied for probation to evade a prison term. It would best serve the ends of criminal justice if in fixing the penalty within the range of discretion allowed by par. 1, the same philosophy underlying the Indeterminate Sentence Law is observed, namely, that of redeeming valuable human material and preventing unnecessary deprivation of personal liberty and economic usefulness with due regard to the protection of the social order. In this case we believe that a fine in an amount equal to double the amount of the check involved is an appropriate penalty to impose on each of the petitioners.

Vallarta vs. CA, 150 SCRA 336 Facts: Rosalinda Cruz and accused Victoria Vallarta are long time friends and business acquaintances. On November 20, 1968, Cruz entrusted to Victoria Vallarta seven pieces of jewelry. In December of the same year, Vallarta decided to buy some items, exchanged one item with another, and issued a post-dated check in the amount of P5,000 dated January 30, 1969. Rosalinda Cruz deposited said check with the bank. However, upon presentment, the check was dishonored and Cruz was informed that Vallarta's account had been closed. Cruz apprised Vallarta of the dishonor and the latter promised to give another check. Later, Vallarta pleaded for more time. Still later, she started avoiding Cruz. Hence, this criminal action

was instituted. The trial court and the Court of Appeals found Vallarta guilty beyond reasonable doubt of the crime of estafa.

Issue: W/N the petitioner committed estafa

Held: To constitute estafa under this provision

1. The act of post-dating or issuing a check in payment of an obligation must be the efficient cause of defraudation, and as such

2. it should be either prior to, or simultaneous with the act of fraud.

3. The offender must be able to obtain money or property from the offended party because of the issuance of a check whether post-dated or not. That is, the latter would not have parted with his money or other property were it not for the issuance of the

check.

4. likewise, the check should not be, issued in payment

of a pre-existing obligation xxx Thus, when the check which later bounced was issued, it was not in payment of a pre-existing obligation. Instead the issuance of the check was simultaneous with the transfer of ownership over the jewelry. But was the check issued simultaneously with the fraud? Republic Act No. 4885, amending Art. 315 (2) (d), Revised Penal Code, establishes a prima facie evidence of deceit upon proof that the drawer of the check failed to deposit the amount necessary to cover his check within three (3) days from receipt of notice of dishonor for lack or insufficiency of funds. Admittedly, (1) the check was dishonored as Vallarta's account had been earlier closed; (2) she was notified by Cruz of the dishonor: and, (3) Vallarta failed to make it good within three days. Deceit is therefore presumed Did Cruz part with the jewelry solely because she knew Vallarta to be rich, or did she do so because of the check issued to her? As the trial court and the Court of Appeals found, petitioner was able to obtain the jewelry because she issued the check. Her failure to deposit the necessary amount to cover it within three days from notice of dishonor created the prima facie presumption established by the amendatory law, Rep. Act No. 4885, which she failed to rebut. Petitioner, however, contends that Rep. Act No. 4885 is unconstitutional. She claims that even as the presumption of deceit established by Rep. Act No. 4885 is stated under the guise of being prima facie. It is in effect a conclusive presumption, because after the prosecution has proved that:

(1) the check has been dishonored; (2) notice has been given to the drawer; and, (3) three days from notice, the check is not funded or the obligation is not paid, the accused is held guilty. Thus, it is alleged, the constitutional presumption of innocence is violated. Contrary to petitioner's assertion, the presumption of deceit under Rep. Act No. 4885 is not conclusive. It is rebuttable. For instance, We ruled in the case of People v. Villapando (56 Phil. 31 [1931]) that good faith is a defense to a charge of estafa by postdating a check, as when the drawer, foreseeing his inability to pay the check at maturity, made an arrangement with his creditor as to the manner of payment of the debt

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Lim vs. CA, 251 SCRA 408 Facts: Manuel Lim and Rosita Lim are the president and treasurer, respectively, of Rigi Bilt Industries, Inc. (RIGI). RIGI had been transacting business with LINTON for years, the latter supplying the former with steel plates, steel bars etc. On 27 May 1983 the Lims ordered 100 pieces of mild steel plates worth P51,815.00 from LINTON which were delivered. To pay LINTON for the delivery the Lims issued SOLIDBANK a postdated check dated 3 September 1983 in the amount of P51,800.00. On 30 May 1983 the Lims ordered another 65 pieces of mild steel plates worth P63,455.00 from LINTON which were delivered. They issued as payment SOLIDBANK Check No. 027699 in the amount of P63,455.00 postdated 20 August 1983. The Lim spouses also ordered 2,600 "Z" purlins worth P241,800.00 which were delivered to them on various dates they issued seven SOLIDBANK checks. William Yu Bin, Vice President and Sales Manager of LINTON, testified that when those seven (7) checks were deposited with the Rizal Commercial Banking Corporation they were dishonored for "insufficiency of funds" with the additional notation "payment stopped" stamped thereon. Despite demand Manuel and Rosita refused to make good the checks or pay the value of the deliveries. Lim admitted having issued the seven (7) checks in question to pay for deliveries made by LINTON but denied that his company's account had insufficient funds to cover the amounts of the checks. He presented the bank ledger showing

a balance of P65,752.75. Also, he claimed that he ordered

SOLIDBANK to stop payment because the supplies delivered by LINTON were not in accordance with the specifications in

the purchase orders. Issue: (1) W/N the prosecution was able to prove the elements

of BP 22. (2) W/N the venue was improper.

Held: (1) The petition has no merit. Section 1, par. 1, of B.P. Blg. 22 punishes "[a]ny person who makes or draws and issues any check to apply on account or for value, knowing at the time

of issue xxx The gravamen of the offense is knowingly issuing

a worthless check. Thus, a fundamental element is knowledge

on the part of the drawer of the insufficiency of his funds in or

credit with the drawee bank for the payment of such check in full upon presentment. Another essential element is subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.

(2) It is settled that venue in criminal cases is a vital ingredient

of jurisdiction. Section 14, par. (a), Rule 110, of the Revised

the court therein has the sole jurisdiction to try the case. There are certain crimes in which some acts material and essential to the crimes and requisite to their consummation occur in one municipality or territory and some in another, in which event, the court of either has jurisdiction to try the cases, it being understood that the first court taking cognizance of the case excludes the other. These are the so-called transitory or continuing crimes under which violation of B.P. Blg. 22 is categorized. In other words, a person charged with a transitory crime may be validly tried in any municipality or territory where the offense was in part committed. Under Sec. 191 of the Negotiable Instruments Law the term "issue" means the first delivery of the instrument complete in form to a person who takes it as a holder. On the other hand, the term "holder" refers to the payee or indorsee of a bill or note who is in possession of it or the bearer thereof. In People v. Yabut this Court explained xxx The place where the bills were written, signed, or dated does not necessarily fix or determine the place where they were executed. What is of decisive importance is the delivery thereof. The delivery of the instrument is the final act essential to its consummation as an obligation. An undelivered bill or note is inoperative. Until delivery, the contract is revocable. And the issuance as well as the delivery of the check must be to a person who takes it as a holder, which means "(t)he payee or indorsee of a bill or note, who is in possession of it, or the bearer thereof." Delivery of the check signifies transfer of possession, whether actual or constructive, from one person to another with intent to transfer title thereto

.

Although LINTON sent a collector who received the checks from petitioners at their place of business in Kalookan City, they were actually issued and delivered to LINTON at its place of business in Balut, Navotas. The receipt of the checks by the collector of LINTON is not the issuance and delivery to the payee in contemplation of law. The collector was not the person who could take the checks as a holder, i.e., as a payee or indorsee thereof, with the intent to transfer title thereto. Neither could the collector be deemed an agent of LINTON with respect to the checks because he was a mere employee. The prima facie evidence has not been overcome by petitioners in the cases before us because they did not pay LINTON the amounts due on the checks; neither did they make arrangements for payment in full by the drawee bank within five

(5) banking days after receiving notices that the checks had not been paid by the drawee bank. In People v. Grospe we held

that

knowledge on the part of the maker or drawer of the

check of the insufficiency of his funds is by itself a continuing eventuality, whether the accused be within one territory or

Rules of Court, which has been carried over in Sec. 15, par. (a), Rule 110 of the 1985 Rules on Criminal Procedure,

another."

specifically provides:

NOTES:

Sec. 14. Place where action is to be instituted. (a) In all criminal prosecutions the action shall be instituted and tried in the court of the municipality or province wherein the offense was committed or anyone of the essential ingredients thereof took place.

*Good faith is not a defense in BP 22 because fraud is not an element of BP 22. *If the maker and the drawer had previous business transactions (and the manner of payment issuance of checks) → BP 22

If

all the acts material and essential to the crime and requisite

*First time transaction → Estafa

of

its consummation occurred in one municipality or territory,

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*Reason for the 90 days to protect the payee in case the maker / issuer has knowledge of sufficient funds but withdrew it within 90 days. *Ex. Car amounting to P800,000.00. Agreement: installment payments. Buyer issued a check amounting to P100,000.00 as downpayment, it was encashed. However, subsequent post dated checks bounced → BP 22 *Ex. If 8 post dated checks were issued and no downpayment → estafa and BP 22 (pls. check if the answer is correct). *How to prove knowledge of insufficiency of funds? No need to prove because it is presumed. *How to negate? Pay within 5 days.

REPUBLIC ACT NO. 9165 AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES

Definitions Administer Any act of introducing any dangerous drug into the body of any person, with or without his/her knowledge, by injection, inhalation, ingestion or other means, or of committing any act of indispensable assistance to a person in administering a dangerous drug to himself/herself unless administered by a duly licensed practitioner for purposes of medication.

Drug Dependence - As based on the World Health Organization definition, it is a cluster of physiological, behavioral and cognitive phenomena of variable intensity, in which the use of psychoactive drug takes on a high priority thereby involving, among others, a strong desire or a sense of compulsion to take the substance and the difficulties in controlling substance-taking behavior in terms of its onset, termination, or levels of use.

Drug Syndicate - Any organized group of two (2) or more persons forming or joining together with the intention of committing any offense prescribed under this Act.

Planting of Evidence The willful act by any person of maliciously and surreptitiously inserting, placing, adding or attaching directly or indirectly, through any overt or covert act, whatever quantity of any dangerous drug and/or controlled precursor and essential chemical in the person, house, effects or in the immediate vicinity of an innocent individual for the

purpose of implicating, incriminating or imputing the commission of any violation of this Act.

Punishable Acts

1. Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals

2. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.

3. Maintenance of a Den, Dive or Resort

4. Being an Employee or Visitor of a Den, Dive or Resort

5. Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals

6. Illegal Chemical Diversion of Controlled Precursors

and Essential Chemicals

7. Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals

8. Possession of Dangerous Drugs

9. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs

10. Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings.

11. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings

12. Use of Dangerous Drugs

13. Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources Thereof

14. Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors and Essential Chemicals

15. Unnecessary Prescription of Dangerous Drugs

16. Unlawful Prescription of Dangerous Drugs

Imposable Penalties read codal

Provision of Plea Bargaining Sec. 23. Plea-Bargaining Provision. Any person charged under any provision of this Act regardless of the imposable penalty shall not be allowed to avail of the provision on plea- bargaining.

Provision on the Application of the Probation Law Sec. 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended

Planting of Evidence Sec. 29. Criminal Liability for Planting of Evidence. Any person who is found guilty of "planting" any dangerous drug

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and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death.

Aggravating Circumstance Sec. 25. Qualifying Aggravating Circumstances in the Commission of a Crime by an Offender Under the Influence of Dangerous Drugs. Notwithstanding the provisions of any law to the contrary, a positive finding for the use of dangerous drugs shall be a qualifying aggravating circumstance in the commission of a crime by an offender, and the application of the penalty provided for in the Revised Penal Code shall be applicable

Accessory Penalties Sec. 35. Accessory Penalties. A person convicted under this Act shall be disqualified to exercise his/her civil rights such as but not limited to, the rights of parental authority or guardianship, either as to the person or property of any ward, the rights to dispose of such property by any act or any conveyance inter vivos, and political rights such as but not limited to, the right to vote and be voted for. Such rights shall also be suspended during the pendency of an appeal from such conviction.

Suspension of Sentence Sec. 66. Suspension of Sentence of a First-Time Minor Offender. An accused who is over fifteen (15) years of age at the time of the commission of the offense mentioned in Section 11 of this Act, but not more than eighteen (18) years of age at the time when judgment should have been promulgated after having been found guilty of said offense, may be given the benefits of a suspended sentence, subject to the following conditions:

(a) He/she has not been previously convicted of violating any

provision of this Act, or of the Dangerous Drugs Act of 1972, as

amended; or of the Revised Penal Code; or of any special

penal

(b) He/she has not been previously committed to a Center or to

the care of a DOH-accredited physician; and

(c) The Board favorably recommends that his/her sentence be

suspended. While under suspended sentence, he/she shall be under the supervision and rehabilitative surveillance of the Board, under such conditions that the court may impose for a period ranging from six (6) months to eighteen (18) months. Upon recommendation of the Board, the court may commit the accused under suspended sentence to a Center, or to the care of a DOH-accredited physician for at least six (6) months, with after-care and follow-up program for not more than eighteen (18) months. In the case of minors under fifteen (15) years of age at the time of the commission of any offense penalized under this Act, Article 192 of Presidential Decree No. 603, otherwise known as the Child and Youth Welfare Code, as amended by Presidential Decree No. 1179 shall apply, without prejudice to the application of the provisions of this Section.

laws;

Take Note: Under Juvenile Justice xxx Law - a child below 15 years old may now avail of the suspension

Mandate of the Dangerous Drugs Board and the PDEA Sec. 84. Powers and Duties of the PDEA. The PDEA shall:

(a) Implement or cause the efficient and effective

implementation of the national drug control strategy formulated by the Board thereby carrying out a national drug campaign program which shall include drug law enforcement, control and prevention campaign with the assistance of concerned government agencies;

(b) Undertake the enforcement of the provisions of Article II of

this Act relative to the unlawful acts and penalties involving any

dangerous drug and/or controlled precursor and essential chemical and investigate all violators and other matters involved in the commission of any crime relative to the use, abuse or trafficking of any dangerous drug and/or controlled

precursor and essential chemical as provided for in this Act and the provisions of Presidential Decree No. 1619;

(c) Administer oath, issue subpoena and subpoena duces

tecum relative to the conduct of investigation involving the

violations of this Act;

(d) Arrest and apprehend as well as search all violators and

seize or confiscate, the effects or proceeds of the crimes as provided by law and take custody thereof, for this purpose the prosecutors and enforcement agents are authorized to possess firearms, in accordance with existing laws;

(e) Take charge and have custody of all dangerous drugs

and/or controlled precursors and essential chemicals seized, confiscated or surrendered to any national, provincial or local

law enforcement agency, if no longer needed for purposes of evidence in court;

(f) Establish forensic laboratories in each PNP office in every

province and city in order to facilitate action on seize or confiscated drugs, thereby hastening its destruction without delay;

(g) Recommend to the DOJ the forfeiture of properties and

other assets of persons and/or corporations found to be

violating the provisions of this Act and in accordance with the pertinent provisions of the Anti-Money-Laundering Act of 2001;

(h) Prepare for prosecution or cause the filing of appropriate

criminal and civil cases for violation of all laws on dangerous drugs, controlled precursors and essential chemicals, and other similar controlled substances, and assist, support and coordinate with other government agencies for the proper and effective prosecution of the same;

(i) Monitor and if warranted by circumstances, in coordination with the Philippine Postal Office and the Bureau of Customs, inspect all air cargo packages, parcels and mails in the central post office, which appear from the package and address itself to be a possible importation of dangerous drugs and/or controlled precursors and essential chemicals, through on-line or cyber shops via the internet or cyberspace;

(j) Conduct eradication programs to destroy wild or illegal

growth of plants from which dangerous drugs may be extracted; (k) Initiate and undertake the formation of a nationwide organization which shall coordinate and supervise all activities

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against drug abuse in every province, city, municipality and

barangay with the active and direct participation of all such local government units and nongovernmental organizations, including the citizenry, subject to the provisions of previously formulated programs of action against dangerous drugs;

(l) Establish and maintain a national drug intelligence system in

cooperation with law enforcement agencies, other government agencies/offices and local government units that will assist in its apprehension of big-time drug lords;

(m) Establish and maintain close coordination, cooperation and

linkages with international drug control and administration agencies and organizations, and implement the applicable provisions of international conventions and agreements related

to dangerous drugs to which the Philippines is a signatory;

(n) Create and maintain an efficient special enforcement unit to

conduct an investigation, file charges and transmit evidence to

the proper court, wherein members of the said unit shall

possess suitable and adequate firearms for their protection in connection with the performance of their duties: Provided, That no previous special permit for such possession shall be required;

(o) Require all government and private hospitals, clinics,

doctors, dentists and other practitioners to submit a report to it, in coordination with the Board, about all dangerous drugs and/or controlled precursors and essential chemicals which they have attended to for data and information purposes;

(p) Coordinate with the Board for the facilitation of the issuance

of necessary guidelines, rules and regulations for the proper implementation of this Act;

(q) Initiate and undertake a national campaign for drug

prevention and drug control programs, where it may enlist the assistance of any department, bureau, office, agency or instrumentality of the government, including government-

owned and or controlled corporations, in the anti-illegal drugs drive, which may include the use of their respective personnel, facilities, and resources for a more resolute detection and investigation of drug-related crimes and prosecution of the drug traffickers; and

(r) Submit an annual and periodic reports to the Board as may

be required from time to time, and perform such other functions

as may be authorized or required under existing laws and as directed by the President himself/herself or as recommended by the congressional committees concerned.

People vs. Villanueva, 506 SCRA 281 Facts: PO1 Rana of the Dangerous Drugs Enforcement Group (DDEG), Northern Police District, testified that at 8:00 p.m. of July 9, 2002, a confidential informant informed them that appellant was selling shabu at Block 8, lot 2, Phase 2, Area 1, Dagat-dagatan, Navotas. He immediately composed a team of police operatives to entrap the appellant. After marking the P100.00 and recording in the blotter its serial number, the team proceeded to the place. He and the informant approached the appellant. The informant introduced him to the appellant, who asked them if they wanted to buy shabu. Appellant got one plastic sachet from his pocket containing a white crystalline substance. After appellant received the marked money, Rana executed the prearranged signal and the team arrested the

appellant. Denying the accusations against him, appellant testified that on the night of the alleged commission of the crime, he was at home watching television. Thereafter, two policemen knocked at the door looking for a certain person named Roger. When he identified himself as Roger, he was immediately handcuffed and brought to the headquarters without explanation. It was only later that he found out that he was being charged for selling shabu. The trial court found appellant guilty beyond reasonable doubt of the crime of drug pushing.

Issues: (1) W/N the testimony of a single prosecution witness is sufficient for conviction. (2) W/N quantity of the drugs is important.

Held: (1) To sustain a conviction under a single prosecution witness, such testimony needs only to establish sufficiently (Elements necessary in every prosecution for the illegal sale of shabu):

1) the identity of the buyer, seller, object and consideration; and 2) the delivery of the thing sold and the payment thereof. Indeed, what is material is proof that the transaction or sale actually took place, coupled with the presentation in court of the substance seized as evidence. In this case, PO1 Rana, being the poseur-buyer, was the most competent person to testify on the fact of sale and he did so to the satisfaction of both the trial court and the appellate court. (2) While it correctly imposed the said penalties, we find the reason given therefor, that is, in view of the small quantity of shabu involved, inaccurate xxx , the foregoing provision now imposes the penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) for the sale, trade, administration, dispensation, delivery, distribution and transportation of shabu, a dangerous drug, regardless of the quantity involved.

People vs. Del Mundo, 510 SCRA 554 Facts: The Makati Anti-Drug Abuse Council (MADAC) received a report from a confidential informant that a certain Romy, later identified as appellant, was engaged in the selling of prohibited drugs, particularly shabu. Proceeding from this information, the head of MADAC formed a team to conduct a buy-bust operation and designated MADAC agent Norman A. Bilason (Bilason) as the poseur-buyer, to be provided with two (2) marked P100 bills. On 18 October 2002, at around 5:00 o'clock in the afternoon, the informant accompanied Bilason to the place where appellant was reported to be plying his trade xxx Bilason and the informant approached appellant who was then standing at the corner of Pasong Tirad and Ponte Streets in Tejeros, Makati and talking to his female companion, later identified as Pugal and allegedly a 'scorer' according to the informant. The informant introduced Bilason to appellant as a buyer of shabu. Appellant asked Bilason how much he intended to buy. Bilason replied, "Dos lang, panggamit lang." Then, appellant received the P200.00 marked money from Bilason while handing the latter one (1) plastic sachet 9 of

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shabu which came from the left pocket of his pants. Next, Bilason gave the pre-arranged signal. The rest of the team closed in. Bilason introduced himself as a member of MADAC and, with the team, placed appellant and Pugal under arrest. Two (2) plastic sachets and the marked money were recovered from appellant while one (1) plastic sachet was confiscated from Pugal. Xxx Afterwards, appellant and Pugal were brought to the DEU office for proper disposition. Tests conducted on the plastic sachet yielded positive results for Methylamphetamine Hydrochloride. Appellant, a 63-year old jobless resident of Tejeros, Makati, interposed the defense of denial. He claimed that there was never a time in his life that he sold shabu. He alleged that in the afternoon of 18 October 2002, he was inside his house lying down with his grandchild. He was awakened from sleep when police officers kicked the door open and entered the house. The police officers forced him to reveal the whereabouts of the shabu and the money. Appellant replied that he does not sell shabu. Then, the police officers searched the house but were not able to find anything. Subsequently, appellant was asked to go out of the house and board the police officers' service vehicle for allegedly selling shabu. xxx Appellant was charged before the Regional Trial Court (RTC) of Makati, Branch 135, for violation of Sections 5 (sale of drugs) and 11 (possession of drugs), Article II of Republic Act (R.A.) No. 9165 Appellant was found guilty as charged and the judgment of conviction was elevated to the Court for automatic review. (Pugal was acquitted) Appellant principally contends that the non-presentation before the trial court of the informant and witnesses.

Issue: W/N the presentation of the informant and the witnesses is essential.

Held: On the non-presentation of the informant, the rule is that his presentation in an illegal drugs case is not essential for the conviction nor is it indispensable for a successful prosecution because his testimony would merely be corroborative and cumulative. Informants are generally not presented in court because of the need to hide their identity and preserve their invaluable service to the police. Here, the agents directly testified regarding the entrapment, and the testimony of the informant would merely have been corroborative.

Notes:

*If the intention of planting the evidence is for the accused not to be accosted (para wag mahuli) → not liable for planting of evidence. *Unnecessary Prescription vs. Unlawful Prescription Unnecessary - the practitioner prescribes any dangerous drug to any person whose physical or physiological condition does not require the use or in the dosage prescribed therein.

Unlawful - any person, who, unless authorized by law, shall make or issue a prescription or any other writing purporting to be a prescription for any dangerous drug.

REPUBLIC ACT NO. 8294 - AN ACT AMENDING THE PROVISIONS OF PRESIDENTIAL DECREE NO. 1866, AS AMENDED, ENTITLED "CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION OF FIREARMS, AMMUNITION / EXPLOSIVES / INSTRUMENTS USED IN THE MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES, & IMPOSING STIFFER PENALTIES FOR CERTAIN VIOLATIONS THEREOF, & FOR RELEVANT PURPOSES"

Punishable Acts

1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the

Manufacture of Firearms or Ammunition

2. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives

3. Tampering of Firearm's Serial Number

4. Repacking or Altering the Composition of Lawfully Manufactured Explosives.

5. Unauthorized Issuance of Authority to Carry Firearm and/or Ammunition Outside of Residence.

Imposable Penalties read codal

High Powered and Low Powered Firearms High powered firearm - includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by burst of two or three. Low powered firearm - rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition.

Liability of Corporate Officers The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowingly allow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment.

The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm, company, corporation or entity, who shall willfully or knowingly allow any of the explosives owned by such firm, company, corporation or entity, to be used by any person or persons found guilty of violating the provisions of the preceding

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paragraphs.

Special Aggravating Circumstance Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition xxx If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance. If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d'état, such violation shall be absorbed as an element of the crime of rebellion, or insurrection, sedition, or attempted coup d’etat. Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Explosives xxx When a person commits any of the crimes defined in the Revised Penal Code or special laws with the use of the aforementioned explosives, detonation agents or incendiary devices, which results in the death of any person or persons, the use of such explosives, detonation agents or incendiary devices shall be considered as

an

If the violation of this Section is in furtherance of, or incident to,

or in connection with the crime of rebellion, insurrection, sedition or attempted coup d'état, such violation shall be absorbed as an element of the crimes of rebellion, insurrection, sedition or attempted coup d’etat.

aggravating circumstance.

Valid Defense Against RA 8294 authorized use of licensed firearm.

Coverage of the Term Unlicensed Firearm

1. Firearms with expired license or

2. Unauthorized use of licensed firearm in the

commission of the crime.

People vs. De Vera, 308 SCRA 75 Facts: The fatalities were 13-year old Gerardo Valdez & 29- year old Perlita Ferrer. Accused of having killed the two victims was Cipriano De Vera, Sr., an uncle of Gerardo, who was charged in three separate informations, inclusive of a charge for illegal possession of firearm.xxx Neil Valdez, brother of Gerardo, recalled that at around midnight of 31 December 1993, he and Gerardo were exploding firecrackers when he noticed his uncle, Cipriano De Vera, Sr., go under a mango tree. Minutes later, he was startled by a gunshot, followed by the falling body of his brother, Gerardo, to the ground. When he looked around, he saw the accused, whom he clearly recognized, holding a long-barrelled gun, about one meter long, also locally known as "sumpak". The accused was about 8 to 9 meters away from him. Just as he started to assist his brother, Neil heard shouts, about 40 to 50 meters away, that Perlita was also dead ("aynatay metten ni Perlita"). He learned moments later that Perlita was shot on the left side of the forehead above the left eye. The accused tried to flee from the

scene. Neil proceeded to give chase but he was not able to overtake the accused. He speculated that the shooting was an offshoot of the land dispute between his father and the accused. Xxx The court a quo convicted the accused of homicide, murder and illegal possession of firearms and ammunition. Issues: (1) W/N the trial court erred in convicting appellant for illegal possession of firearms. (2) W/N the fact that the firearm was homemade proof that it is unlicensed.

Held: (1) The trial court erred, however, in convicting appellant for Illegal Possession of Firearm and Ammunitions. In People vs. Valdez, the Court, citing People vs. Molina and People vs. Feloteo held that there could be no separate conviction for Illegal Possession of Firearms under Presidential Decree No. 1866 in view of the amendments introduced by Republic Act No. 8294 and that the illegal possession of firearms should thenceforth be taken as an aggravating circumstance pursuant

to Section 1 of the amendatory law.

(2) Nevertheless, the alleged use of an unlicensed firearm as a special aggravating circumstance in Criminal Case No. U-7809 and Criminal Case No. U-7810 would be improper. While it was

established by the testimonies of Neil and Jesusa Valdez that appellant used a sumpak in shooting the victims, it was not equally established that appellant had no license to possess it. The fact that the firearm appeared to be a homemade gun or illegally manufactured would not dispense with the requirement

of proof that it was unlicensed. Besides, Republic Act No. 8294

took effect only on 06 July 1997 and could only be given retroactive effect if favorable to the accused, such as in its application to Criminal Case No. U-7811, but not when it would aggravate the criminal liability of the accused.

People vs. Ladjaalam, 340 SCRA 617 Facts: PO3 Allan Marcos filed an application for the issuance of

a search warrant against appellant, his wife and some John

Does. After the search warrant was issued a briefing for its service was conducted. After the briefing more than 30 policemen proceeded to the house of appellant and his wife Rio Hondo. Before they could reach appellant’s house, 3 persons sitting at a nearby store ran toward the house shouting “police, raid, raid”. When the policemen were about 10 meters from the gate of the house, they were met by a rapid burst of gunfire coming from the 2 nd floor of the house. There were also gunfire at the back of the house xxx The group saw appellant fire an M14 rifle towards them xxx M14 rifle, M16 rifle magazines, ammunitions etc. were found. xxx Rino Locson was an informer of the Zamboanga Police. He was instructed by the police to go to appellant’s house to buy shabu. Locson knew appellant as a seller of shabu. He bought P300 worth of shabu from appellant. The latter got 3 decks of shabu from his waist bag. Appellant instructed Locson to go behind the curtain where there was a table. There were 6 persons already smoking xxx They asked Locson to smoke shabu xxx While they were smoking, he heard a gunfire coming from appellant’s house xxx Appellant told them to escape.xxx

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Appellant Ladjaalam version: He was sleeping in the house of Dandao, a relative of his wife. Xxx He noticed the presence of policemen in the neighborhood when he heard the shots. He woke up and went out of the house and that was the time he was arrested.

The trial court convicted appellant of illegal possession of firearms and the crime of maintenance of a drug den and direct assault with attempted homicide.

Issue: W/N there can be a separate offense of simple illegal possession of firearm in the case.

Held: A simple reading of the law shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the “other crime” is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms xxx If the intention of the law in the second paragraph of Sec. 1 of PD 1866 were to refer only to homicide and murder, it should have expressly said so as it did in the 3 rd paragraph.

People vs. Delim, 396 SCRA 386 Facts: , Manuel and Robert Delim are brothers. They are the uncles of Leon Delim and Ronald Delim. Modesto Manalo Bantas, the victim, was an Igorot and a carpenter. He took the surname Delim after he was "adopted" by the father of Marlon, Manuel and Robert. However, Modesto's wife, Rita, an illiterate, and their 16-year old son, Randy, continued using Manalo Bantas as their surname. Modesto, Rita and Randy considered Marlon, Robert, Ronald, Manuel and Leon as their relatives. Manuel and Leon were the neighbors of Modesto. Marlon, Robert and Ronald used to visit Modesto and his family. Modesto and his family and the Delim kins resided in Barangay Bila, Sison, Pangasinan. On January 23, 1999, Modesto, Rita and Randy were preparing to have their supper in their home. Joining them were Modesto and Rita's two young grandchildren, aged 5 and 7 years old. They were about to eat their dinner when Marlon, Robert and Ronald suddenly barged into the house and closed the door. Each of the three intruders was armed with a short handgun. Marlon poked his gun at Modesto while Robert and Ronald simultaneously grabbed and hog-tied the victim. A piece of cloth was placed in the mouth of Modesto. 4 Marlon, Robert and Ronald herded Modesto out of the house on their way towards the direction of Paldit, Sison, Pangasinan. Rita and Randy were warned by the intruders not to leave the house. Leon and Manuel, who were also armed with short handguns, stayed put by the door to the house of Modesto and ordered Rita and Randy to stay where they were. Leon and Manuel left the house of Modesto only at around 7:00 a.m. the following day, January 24, 1999. As soon as Leon and Manuel had left, Randy rushed to the house of his uncle, Darwin Niño, at Sitio Labayog, informed the latter of the incident the night before and sought his help for the retrieval of

Modesto. Randy was advised to report the matter to the police authorities. However, Randy opted to first look for his father. He and his other relatives scoured the vicinity to locate Modesto to no avail. They proceeded to Paldit, Sison, Pangasinan, around 200 meters away from Modesto's house, to locate Modesto but failed to find him there. On January 25, 1999, Randy and his relatives returned to the housing project in Paldit, Sison, Pangasinan to locate Modesto but again failed to find him there. On January 26, 1999, Randy reported the incident to the police authorities. At around 3:00 in the afternoon of January 27, 1999, Randy, in the company of his relatives, Nida Pucal, Pepito Pucal, Bernard Osias and Daniel Delim, returned to the housing project in Paldit, Sison, Pangasinan and this time they found Modesto under thick bushes in a grassy area. He was already dead. To exculpate themselves, Marlon, Ronald and Leon interposed denial and alibi. Ronald claimed that on January 23, 1999, he, his wife and children, his mother, his brothers and sisters were in their house at Asan Norte, Sison, Pangasinan about two kilometers away from Modesto's house. Marlon asserted that he was on vacation in Dumaguete City from December 26, 1998 up to January 29, 1999. During his stay there, he lived with his sister, Francisca Delim. Upon his return to Manila on January 29, 1999, he immediately proceeded to Baguio to visit his cousin. Marlon denied setting foot in Bila, Sison, Pangasinan after his sojourn in Dumaguete City He denied having been in the house of Modesto on January 23, 1999 and of abducting and killing him. He theorized that Rita and Randy falsely implicated him upon the coaching of Melchor Javier who allegedly had a quarrel with him concerning politics. Leon for his part averred that on January 23, 1999, he was in the house of his sister, Hermelita Estabillo at No. 55-B, Salet, Laoag City, Ilocos Norte where he had been living since 1997 after leaving Asan Norte, Sison, Pangasinan. Since then, he had been working for Sally Asuncion at a hollow-block factory in that city where he was a stay-in worker. The trial court rendered judgment finding accused-appellants guilty of murder.

Issue: W/N illegal possession of firearms may be used as an aggravating circumstance if the lack of license to possess was not alleged in the information.

Held: xxx In sum then, we believe that Marlon, Ronald and Leon are guilty only of Homicide defined in and penalized by Article 249 of the Revised Penal Code with reclusion temporal in its full period. Although the special aggravating circumstance of the use of unlicensed firearms was proven during the trial, there is no allegation in the Information that Marlon, Ronald and Leon had no license to possess the firearm. Lack of license to possess a firearm is an essential element of the crime of violation of PD 1866 as amended by Republic Act No. 8294, or as a special aggravating circumstance in the felony of homicide or murder.

People vs. Cruz, 165 SCRA 135

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Facts: On May 9, 1986, Lt. Manabat, along with the elements of CRIG acting On an intelligence information of a reliable informant that about noon of that day a stolen car, coming from Quezon City, was to be sold somewhere in MagaIlanes, Makati, nabbed Romeo Fernandez and Joey Flores at the intersection of EDSA and Timog Street and brought them to headquarters. After some questioning, these two (2) carnap suspects led the eight man-CRIG team to 61 Mabituan Street, Masambong, Quezon City where they alleged the other members of the carnap gang were waiting for their shares of the proceeds from the sale of a vehicle. At said address, a sister of appellant, who owned the apartment, opened the door to the CRIG team. Inside the apartment, the team found appellant, sleeping on the floor, and gangmates Herminio Rivera and Lolito Timcang. The team recognized appellant because he was pointed to by Fernandez and Flores. These two also informed the team that appellant was armed and, sure enough, the team found a clutch bag containing a caliber .38 paltik revolver, one (1) live ammunition and a hand grenade under a bar, located one (1) meter away from the slumbering appellant. After waking him up, sgt. Cachuela confronted him at once with these exhibits. Appellant, in the presence of all the eight-man CRIG team and gangmates admitted ownership of the bag, firearm, bullet and grenade. The team arrested appellant and the rest of his group, as well as confiscated the items of the crime. The accused, upon the other hand, denied ownership or possession of the firearm and hand grenade, as well as the bag which contained the same. According to the accused, the bag and its contents belonged to Joey Flores and was "planted" by PC operatives. His version of the case is, as follows: In the afternoon of 8 May 1986, between 4:30 and 5:00 o'clock, he was sleeping in the house of his sister at No. 61 Mabituan Street, Masambong, Quezon City, together with Eutiquio Lapinig, Jaime Rivera, and Dionisio Daracin, when PC men barged inside and rudely awakened him. He was confronted with a gun and a hand grenade, but he denied ownership of the same. Then, he and his companions were tied up and brought to Camp Bicutan on board a six-by-six truck

xxx.

Issue: W/N ownership of the firearm is essential in cases of illegal possession.

Held: The appellant maintains that the revolver and hand grenade in question did not belong to him; nor was he in actual possession thereof at the time he was arrested. Ownership, however, is not an essential element of the offense charged. What the law requires is merely possession which includes not only actual physical possession but also constructive possession or the subjection of the thing to one's control and

management.

Agote vs. Lorenzo, 464 SCRA 60 Facts: Agote was earlier charged of illegal possession of firearms and violation of COMELEC Resolution 2826 (Gun Ban). Petitioner pleaded not guilty to both charges. The trial court rendered judgment of conviction in both cases sentencing petitioner to an indeterminate penalty of 10 years and 1 day of

prision mayor as minimum to 18 years, 8 months and 1 day of reclusion temporal as maximum in accordance with PD 1866 (illegal possession) and to a prison term of 1 year for violation of the COMELEC resolution. Meanwhile, on June 6, 1997, RA 8294 was approved into law. The penalty for illegal possession of firearms has already been reduced. According to Agote, the latter law, being favorable to him, should be the one applied in determining his penalty for illegal possession. The trial court and the CA denied his motion.

Issues: (1) W/N RA 8294 can be retroactively applied in this case. (2) W/N the unlicensed firearm should be actually used and discharged in the course of committing the other crime. (3) W/N there can be a separate offense of simple illegal possession of firearm in the case

Held: (1) The law must be given retroactive effect in favor of the accused xxx In People vs. Valdez, where the accused was charged with the complex crime of multiple murder and illegal possession of firearms and ammunitions under 2 separate informations, this court even took a bolder stance by applying RA 8294 retroactively so that the accused may not be convicted of the separate crime of illegal possession of firearms but refused to apply the same retroactively so as to aggravate the crime of murder. The Valdez ruling had been applied in a host of subsequent cases. Yet in other cases, the court had given RA 8294 retroactive effect so as to prevent conviction of an accused of the crime of simple illegal possession of firearm when the said unlicensed firearm was used to commit the crime of murder or homicide, the court did not appreciate the use of such unlicensed firearm as an aggravating circumstance as provided therein, when the use of an unlicensed firearm was not specifically alleged in the information. (2) xxx In the more recent case People vs. Almeida, although the accused was acquitted of the separate charge of illegal possession of firearms for lack of evidence, the court nevertheless made the following pronouncement: xxx there can be no separate offense of illegal possession of firearms and ammunition if there is another crime committed such as in this case the illegal possession of dangerous drugs. In Almeida, it should be noted that the unlicensed firearm was merely found lying around, together with the prohibited drugs and therefore was not being used in the commission of an offense. (3) In People vs. Ladjaalam, this court, interpreting the subject proviso in Sec. 1 of RA 8294, applied the basic principles in criminal law and categorically held that: A simple reading of the law shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the “other crime” is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since direct assault with multiple homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms xxx If the intention of the law in the second paragraph of Sec. 1 of PD 1866 were to refer only to homicide and murder, it should have expressly said so as it did in the 3 rd paragraph.

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Notes:

*See Sayco vs. People, March 3, 2008 who can issue permit to carry. *Punishable Acts under RA 8294 (although the accused is in possession of a licensed firearm)

1. Tampering of Firearm's Serial Number

2. Repacking or Altering the Composition of Lawfully Manufactured Explosives.

3. Unauthorized Issuance of Authority to Carry Firearm and/or Ammunition Outside of Residence.