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CRIM. CASE NO. 09-267753
-versus- FOR: Violation of Sec. 11(3), Art. II, RA 9165





The Prosecution, unto this Honorable Court, most respectfully states:


On April 13, 2009 at around 1:45am, along Concha Street, San Andres,
Bukid, Manila, one NORMAN DIMAIN y BUENAFE, 21 years old, single, jobless
and residing at 2173 Concha Street, San Andres, Bukid, Manila was arrested
for violating Sec. 13, in relation 12, Art. II of RA 9165 (The Comprehensive
Dangerous Drugs Act of 2002).

Prior to the arrest of DIMAIN, the arresting officers, members of the

Philippine National Police were conducting their anti-criminality campaign
and routine patrol within their AOR particularly along Concha Street, San
Andres Bukid, Manila to weed out all forms of criminality and likewise arrest
and/or apprehend all criminals/violators.

At around 1:45am, on this date, while patrolling along Concha Street,

San Andres, Bukid, the said arresting officers recounted that they have actually
seen and observed a group of three (3) male persons standing at the said place
approximately five (5) meters away. The group of three males were in the act
of consuming/smoking marijuana which the arresting officers had identified
due to the distinct smell it emanated. Said suspected marijuana substance was
placed in an improvised pipe made of cigarette foil which at that time was in
the hands of DIMAIN while the other two (2) companions were waiting for
their turn. At that point, the arresting officers approached them but it caused
the two (2) companions of DIMAIN to flee upon spotting the officers. DIMAIN,
however, was caught and placed under arrest.

Upon arrest, the officers introduced themselves as such and proceeded

to inform DIMAIN of his violation and subsequently apprised him of his
constitutional rights under the law and subjected him to search where the one
(1) improvised pipe made of cigarette foil, containing dried marijuana leaves
was recovered from him.
Upon arrest, the improvised pipe was marked “NDB” and inventoried. It
was brought to SOCO, MPD for examination to determine if the specimen
submitted is positive for dangerous drugs. A request was made to the District
Director of the SOCO MPD for laboratory examination of said marked and
inventoried pipe. The Crime Laboratory Office Headquarter published the
result stating that the said specimen yielded POSITIVE for test of Marijuana.


The memorandum will discuss the following issues:

I. Whether or not DIMAIN has violated RA 9165 (The Comprehensive

Dangerous Drugs Act of 2002); and

II. Whether or not the arrest of DIMAIN and the subsequent search on
him was in violation of the Constitution.


I. DIMAIN violated RA 9165 (The Comprehensive Dangerous Drugs

Act of 2002)

a. DIMAIN violated Sec. 13, in relation to section 11(3), Art. II of RA


Section 13 of RA 9165 states that any person found possessing any

dangerous drug during a party, or at a social gathering or meeting, or in the
proximate company of at least two (2) persons, shall suffer the maximum
penalties provided for in Section 11 of the Act, regardless of the quantity and
purity of such dangerous drugs. The Implementing Rules for this section states
that he phrase "company of at least two (2) persons" shall mean the accused
or suspect plus at least two (2) others, who may or may not be in possession
of any dangerous drug. In People v Martinez1, it was stated that:
“the essential requisites to establish illegal possession of dangerous drugs
are: (i) the accused was in possession of the dangerous drug, (ii) such
possession is not authorized by law, and (iii) the accused freely and
consciously possessed the dangerous drug. Additionally, this being a case for
violation of Section 13 of R.A. No. 9165, an additional element of the crime is
(iv) the possession of the dangerous drug must have occurred during a party,
or at a social gathering or meeting, or in the proximate company of at least
two (2) persons.”
Such drugs were in the possession of marijuana as the pipe was found in
his custody. No explanation was ever given by DIMAIN for legally possessing
the drug. In fact, he freely and consciously smoke and consumed the drug
while his companions awaited their turn. DIMAIN was seen and observed by
the arresting officers of the PNP in the act of smoking marijuana through an
improvised pipe made of cigarette foil, with two (2) other companions, just
five (5) meters away.

1. People v Martinez, GR No. 191366, December 13, 2010

Due to this fact, DIMAIN should be punished under Sec. 11(3) of the
same act, which states that any person, who, unless authorized by law, shall
possess any dangerous drug if the quantities of dangerous drugs are less than
five (5) grams, regardless of the degree of purity thereof: of marijuana with
Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a
fine ranging from Three hundred thousand pesos (P300,000.00) to Four
hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs
are less than three hundred (300) grams of marijuana.

The mere fact that only the pipe was found to contain burnt blackish
residue of marijuana, in a small amount of .045 grams, does not mean DIMAIN
should not to be punished for possession of dangerous drugs. In this case, the
RA 9165 still provides for a punishment for such small doses of burnt

Thus, DIMAIN violated Section 13, in relation to Section 11(3) of RA 9165.

b. In any case, DIMAIN violated Sec. 12 and Sec. 15 Art. II of the same

Section 12 provides that any person who, unless authorized by law, shall
possess or have under his control any equipment, instrument, apparatus and
other paraphernalia fit or intended for smoking or consuming any dangerous
drug shall be punished with imprisonment ranging from six (6) months and
one (1) day to four (4) years and a fine ranging from Ten thousand pesos
(P10,000) to Fifty thousand pesos (P50,000).

DIMAIN was apprehended in possession of an improvised pipe made from

cigarette. Upon the return of the medical results examining the pipe, it yielded
a positive result for marijuana. There is no doubt that such an instrument was
used for smoking or consuming the said dangerous drug.

Further, the Implementing Rules for the aforesaid section states that the
possession of such equipment, instrument, apparatus and other paraphernalia
shall be prima facie evidence that the possessor had smoked or consumed the
dangerous drug. In this light, Section 15 is also becomes applicable.

Section 15 provides that a person arrested, who is found for use of any
dangerous drug, after a confirmatory test shall be imposed a penalty and fine,
the severity of which depends upon the number of times he has been arrested
for the same purpose.

The fact that DIMAIN was arrested with an improvised pipe creates a
presumption that such instrument was used by the possessor for smoking and
consuming marijuana. As such, the punishments provided in Section 15
should be applied.

Thus, DIMAIN violated Section 12 of RA 9165, and should be punished in

accordance with Section 15 of the same Act.

II. The arrest of DIMAIN and subsequent search are not in violation
of the Constitution.
a. DIMAIN was validly arrested.

Although generally, a warrant of arrest is necessary in order to apprehend

an individual, Section 5(a), Rule 113 of the Revised Rules of Court provides
that a peace officer or a private person may, without a warrant, arrest a person
when, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.

It is noteworthy that before the said arrest of DIMAIN, the members of the
PNP had observed DIMAIN and his companions smoking marijuana from five
(5) meters away. The officers concluded that a dangerous drug was being
consumed due to the distinct smell emulating from the make shift foil pipe.

Thus, DIMAIN was actually committing a crime, in violation of RA 9165, in

the presence of a peace officer. Therefore, a warrant of arrest was not
necessary at that point in time.

b. The subsequent search was valid.

Section 13, Rule 126 of the Rules of Court provides that a person lawfully
arrested may be searched for dangerous weapons or anything which may have
been used or constitute proof in the commission of an offense without a
search warrant.

Due to the fact that a valid warrantless arrest was made upon the person of
DIMAIN, the peace officers of the PNP were well within the ambit of law when
they made the subsequent search.

Thus, the subsequent search did not violated the law.


WHEREFORE, in view of the foregoing, the prosecution earnestly prays

that the accused NORMAN DIMAIN y BUENAFE be adjudged and declared
beyond reasonable doubt for violating Sec. 13, in relation to Sec. 11(3), and
Sec. 12, in relation to Sec. 15, of Art. II of RA 9165 (The Comprehensive
Dangerous Drugs Act of 2002).

The prosecution prays for such other reliefs and remedies that are just
and equitable under the premises.


City of Manila, Metro Manila, Philippines, February 29, 2015


Manila City Hall
2 flr. Antonio Villegas St. Ermita, Manila