Lecture Notes in Medical Technology: IRR of Republic Act No. 9165 (part 1)

IMPLEMENTING RULES AND REGULATIONS (IRR) OF REPUBLIC ACT No. 9165, OTHERWISE KNOWN AS THE “COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002”

Section 1

This IRR, issued and promulgated pursuant to Section 94 of R.A. 9165, shall be referred to as the “COMPREHENSIVE DANGEROUS DRUGS RULES OF 2002.”

Section 2

Declaration of Policy

It is the policy of the State to safeguard the integrity of its territory and the well–being of its citizenry particularly the youth, from the harmful effects of dangerous drugs on their physical and mental well–being, and to defend the same against acts or omissions detrimental to their development and preservation. In view of the foregoing, the State needs to enhance further the efficacy of the law against dangerous drugs, it being one of today’s more serious social ills.

Toward this end the government shall pursue an intensive and unrelenting campaign against the trafficking and use of dangerous drugs and other similar substances through an integrated system of planning, implementation and enforcement of anti–drug abuse policies, programs and projects. The government shall, however, aim to achieve a balance in the national drug control program so that people with legitimate medical needs are not prevented from being treated with adequate amounts of appropriate medications, which include the use of dangerous drugs.

It is further declared the policy of the State to provide effective mechanisms or measures to re–integrate into society individuals who have fallen victims to drug abuse or dangerous drug dependence through sustainable programs of treatment and rehabilitation.

ARTICLE I

DEFINITION OF TERMS

Section 3

Definitions

As used in this IRR, the following terms shall mean:

a. Accreditation – the formal authorization issued by the Department of Health (DOH) to an individual, partnership, corporation or association to operate a laboratory and rehabilitation facility after compliance with the standards set at maximum achievable level to stimulate improvement over time;

b. Act – refers to Republic Act No. 9165;

c. 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;

d. Board or DDB – refers to the Dangerous Drugs Board under Section 77, Article IX of the Act;

e. Center – any of the treatment and rehabilitation centers which undertake the treatment, after–care and follow–up treatment of drugs dependents as referred to in Section 75, Article VII of the Act. It includes institutions, agencies, and the like whose purposes are: the development of skills, arts, and technical know–how; counseling; and/or inculcating civic, social, and moral values to drug patients, with the aim of weaning them away from dangerous drugs and keeping them drug–free, adapted to their families and peers, and readjusted into the community as law abiding, useful and productive citizens.

f. Chemical Diversion – the sale, distribution, supply or transport of legitimately imported, in–transit, manufactured or procured controlled precursors and essential chemicals, in diluted, mixtures or in concentrated form, to any person or entity engage in the manufacture of any dangerous drug, and shall include packaging, repackaging, labeling or concealment of such transaction through fraud, destruction of documents, fraudulent use of permits, misdeclaration, use of front companies or mail fraud.

g. Clandestine Laboratory – any facility used for the illegal manufacture of any dangerous drug and/or controlled precursor and essential chemical;

h. Confinement – refers to the residential treatment and rehabilitation of trainees, clients and patients in a center;

i. Confirmatory Test – an analytical test using a device, tool or equipment with a different chemical or physical principle that is more specific which will validate and confirm the result of the screening test. It refers to the second or further analytical procedure to more accurately determine the presence of dangerous drugs in a specimen;

j. Controlled Delivery – the investigative technique of allowing an unlawful or suspect consignment of any dangerous drug and/or controlled precursor and essential chemical, equipment or paraphernalia or property believed to be derived directly or indirectly from any offense, to pass into, through or out of the country under the supervision of an authorized officer, with a view to gathering evidence to identify any person involved in any dangerous drug related offense, or to facilitate prosecution of that offense;

k. Controlled Precursors and Essential Chemicals – include those listed in Tables I and II of the 1988 UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances as enumerated in the attached annexed which is an integral part of the Act;

l. Cultivate or Culture – any act of knowingly planting, growing, raising or permitting the planting, growing or raising of any plant which is the source of a dangerous drug;

m. DOH–Accredited Physician – refers to a physician with background experience on psychological/behavioral medicine whose application has been approved and duly authorized by the DOH to conduct dependency examination on persons believed to be using dangerous drugs;

n. Dangerous Drugs – include those listed in the Schedules annexed to the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol, and in the Schedules annexed to the 1971 Convention on Psychotropic Substances as enumerated in the attached annex which is an Integral part of the Act;

o. Deliver – any act of knowingly passing a dangerous drug to another, personally or otherwise, and by any mean, with or without consideration;

p. Den, Dive or Resort – a place where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered, stored for illegal purposes, distributed, sold or used in any form;

q. Dispense – any act of giving away, selling or distributing medicine or any dangerous drug with or without the use of prescription;

r. 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 take 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;

s. Drug Dependent – refers to a person suffering from drug dependence;

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

u. Employee of Den, Dive or Resort – the caretaker, helper, watchman, lookout, and other person working in the den, dive or resort, employed by the maintainer, owner and/or operator where any dangerous drug and/or controlled precursor and essential chemical is administered, delivered, distributed, sold or used, with or without compensation, in connection with the operation thereof;

v. Financier – any person who pays for, raises or supplies money for, or underwrites any of the illegal activities prescribed under the Act;

w. Illegal Trafficking – the illegal cultivation, culture, delivery, administration, dispensation, manufacture, sale, trading, transportation, distribution, importation, exportation and possession of any dangerous drug and/or controlled precursor and essential chemical;

x. Income – revenues generated minus the expenses incurred by health facilities in providing health services for the drug dependents;

y. Instrument – anything that is used or intended to be used, in any manner, in the commission of illegal drug trafficking or related offenses;

z. Laboratory – refers to the facility of a private or government agency that is capable of testing a specimen to determine the presence of dangerous drugs therein;

aa. Laboratory Equipment – the paraphernalia, apparatuses, materials or appliances when used, intended for use or designed for use in the manufacture of any dangerous drug and/or controlled precursor and essential chemical, such as reaction vessel, preparative/purifying equipment, fermentors, separatory funnel, flask, heating mantle, gas generator, or their substitute;

bb. Manufacture – the production, preparation, compounding or processing of any dangerous drug and/or controlled precursor and essential chemical, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and shall include any packaging or repackaging of such substances, design or configuration of its form, or labeling or relabeling or its container; except that such terms do not include the preparation, compounding, packaging or labeling of a drug or other substances by a duly authorized practitioner as an incident to his/her administration or dispensation of such drug or substance in the course of his/her professional practice including research, teaching and chemical analysis of dangerous drugs or such substances that are not intended for sale or for any other purpose;

cc. Cannabis or commonly known as “Marijuana” or “Indian Hemp” or by its any other name – embraces every kind, class, genus, or specie of the plant Cannabis sativa L, including, but not limited to, Cannabis Americana, hashish, bhang, guaza, churrus and ganjab, and embraces every kind, class and character of marijuana, whether dried or fresh and flowering, flowering or fruiting tops, or any part or portion of the plant and seed thereof, and all its geographic varieties, whether as a reefer, resin, extract, tincture or in any form whatsoever;

dd. Methylenedioxymethamphetamine (MDMA) or commonly known as “Ecstasy” or by its any other name – refers to the drug having such chemical composition, including any of its isomers or derivatives in any form;

ee. Methamphetamine Hydrochloride or commonly known as “Shabu”, “Ice”, “Meth”, or by its any other name – refers to the drug having such chemical composition, including any of its isomers or derivatives in any form;

ff. Opium – refers to the coagulated juice of the opium poppy (Papaver somniferum L.) and embraces every kind, class and character of opium, whether crude or prepared; the ashes or refuse of the same, narcotic preparations thereof or thereform; morphine or any alkaloid of opium; preparations which opium, morphine or any alkaloid of opium enters as an ingredient; opium poppy; opium poppy straw; and leaves or wrappings of opium leaves, whether prepared for use or not;

gg. Opium Poppy – refers to any part of the plant of the species Papaver somniferum L., Papaver setigerum DC, Papaver orientale, Papaver bracteatum and Papaver rhoeas, which includes the seeds, straws, branches, leaves or any part thereof, or substances derived therefrom, even for floral, decorative and culinary purposes;

hh. PDEA – refers to the Philippine Drug Enforcement Agency under Section 82, Article IX of the Act;

ii. Person – any entity, natural or juridical, including among others, a corporation, partnership, trust or estate, joint stock company, association, syndicate, joint venture or other unincorporated organization or group capable of acquiring rights or entering into obligations;

jj. Planting of Evidence – the willful act of any person of maliciously and surreptitiously inserting, placing, adding or attaching directly or indirectly, through any overt or covert act, whatever quantity 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 the Act;

kk. Practitioner – any person who is a licensed physician, dentist, chemist, medical technologist, nurse, midwife, veterinarian or pharmacist in the Philippines;

ll. Protector / Coddler – any person who knowingly and willfully consents to the unlawful acts provided for in the Act and uses his/her influence, power or position in shielding, harboring, screening or facilitating the escape of any person he/she knows, or has reasonable grounds to believe on or suspects, has violated the provisions of the Act in order to prevent the arrest, prosecution and conviction of the violator;

mm. Pusher – any person who sells, trades, administers, dispenses, delivers or gives away to another, on any term whatsoever, or distributes, dispatches in transit or transports dangerous drugs or who acts as a broker in any such transactions, in violation of the Act;

nn. Rehabilitation – the dynamic process, including after–care and follow–up treatment, directed towards the physical, emotional/psychological, vocational, social and spiritual change/enhancement of a drug dependent to enable him/her to live without dangerous drugs, enjoy the fullest life compatible with his/her capabilities and potentials and render him/her able to become a law–abiding and productive member of the community;

oo. School – any educational institution, private or public, undertaking educational operation for pupils/students pursuing certain studies at defined levels, receiving instructions from teachers, usually located in a building or a group of buildings in a particular physical or cyber site;

pp. Screening Test – a rapid test performed to establish potential/presumptive positive result. It refers to the Immunoassay Test to eliminate a “negative” specimen, i.e. one without the presence of dangerous drugs, from further consideration and to identify the presumptively positive specimen that requires confirmatory test;

qq. Trading – transactions involving the illegal trafficking of dangerous drugs and/or controlled precursors and essential chemicals using electronic devices such as, but not limited to, text messages, e–mail, mobile or landlines, two–way radios, internet, instant messengers and chat rooms or acting as a broker in any of such transactions whether for money or any other consideration in violation of the Act;

rr. Use – any act of injecting, intravenously or intramuscularly, or consuming, either by chewing, smoking, sniffing, eating, swallowing, drinking or otherwise introducing into the physiological system of the body, any of the dangerous drugs.

ARTICLE II

UNLAWFUL ACTS AND PENALTIES

Section 4

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

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) shall be imposed upon any person, who, unless authorized by law, shall import or bring into the Philippines any dangerous drug, regardless of the quantity and purity involved, including any and all species of opium poppy or any part thereof or substances derived therefrom even for floral decorative and culinary purposes.

The penalty of imprisonment ranging from twelve years and one day to twenty years and a find ranging from One hundred thousand pesos (P100,000) to Five hundred thousand pesos (P500,000) shall be imposed upon any person, who, unless authorized by law, shall import any controlled precursor and essential chemical.

The maximum penalty provided for under this Section shall be imposed upon any person, who, unless authorized under the Act, shall import or bring into the Philippines any dangerous drug, and/or controlled precursor and essential chemical through the use of a diplomatic passport, diplomatic facilities or any other means involving his/her official status intended to facilitate the unlawful entry of the same. In addition, the diplomatic passport shall be confiscated and canceled.

The maximum penalty provided for under this Section shall be imposed upon any person, who organizes, managers, or acts as a “financier” of any of the illegal activities prescribed in this Section.

The penalty of twelve years and one day to twenty years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a “protector/coddler” of any violator of the provisions under this Section.

Section 5

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

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) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.

The penalty of imprisonment ranging from twelve years and one day to twenty years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions.

If the sale, trading administration, dispensation, delivery, distribution or transportation of any dangerous drug and/or controlled precursor and essential chemical transpires within one hundred meters from the school, the maximum penalty shall be imposed in every case.

For drug pushers who uses minors or mentally incapacitated individuals as runners, couriers and messengers, or in any other capacity directly connected to the dangerous drugs and/or controlled precursors and essential chemicals trade, the maximum penalty shall be imposed in every case.

If the victim of the offense is a minor or a mentally incapacitated individual, or should a dangerous drug and/or a controlled precursor and essential chemical involved in any offense herein provided be the proximate cause of death of a victim thereof, the maximum penalty provided for under this Section shall be imposed.

The maximum penalty provided for under this Section shall be imposed upon any person who organizes, managers or acts as a “financier” or any of the illegal activities prescribed in this Section.

Section 6

Maintenance of a Den, Dive or Resort

The penalty of imprisonment ranging from twelve years and one day to twenty years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person or group of persons who shall maintain a den, dive or resort where any controlled precursor and essential chemical is used or sold in any form.

The maximum penalty provided for under this Section shall be imposed in every case where any dangerous drug is administered, delivered or sol to a minor who is allowed to use the same in such a place.

Should any dangerous drug be the proximate cause of the death of a person using the same in such den, dive or resort, the penalty of death and a fine ranging from One million (P1,000,000.00) to Fifteen million pesos (P15,000,000.00) shall be imposed on the maintainer, owner and/or operator.

If such de, dive or resort is owned by a third person, the same shall be confiscated and escalated in favor of the government: Provided, that the criminal complaint shall specifically allege that such place is intentionally used in the in furtherance of the crime; Provided, further, that the prosecution shall prove such intent on the part of the owner to use the property for such purpose; Provided, finally, that the owner shall be included as an accused in the criminal complaint.

The maximum penalty provided for under this Section shall be imposed upon any person who organizes, manages or acts as a ”financier” of any of the illegal activities prescribed in this Section.

The penalty of twelve years and one day to twenty years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as “protector/coddler” of any violator of the provisions under this Section.

Section 7

Employees and Visitors of a Den, Dive or Resort

a. Any employee of den, dive or resort, who is aware of the nature of the place as such; and

b. Any person who, not being included in the provisions of the next preceding paragraph, is aware of the nature of the place as such and shall knowingly visit the same.

Section 8

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

The penalty of imprisonment ranging from twelve years and one day to twenty years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who unless authorized by law, shall manufacture any controlled precursor and essential chemical.

The presence of any controlled precursor and essential chemical or laboratory equipment in the clandestine chemical or laboratory equipment in the clandestine laboratory is a prima facie proof of manufacture of any dangerous drug. It shall be considered an aggravating circumstance if the clandestine laboratory is undertaken or established under the following circumstances:

a. Any phase of the manufacturing process was conducted in the presence or with the help of minor/s;

b. Any phase or manufacturing process was established or undertaken within one hundred meters of a residential, business, church or school premises;

c. Any clandestine laboratory was secured or protected with booby traps;

d. Any clandestine laboratory was concealed with legitimate business operations; or

e. Any employment of a practitioner, chemical engineer, public official or foreigner.

The maximum penalty provided for under this Section shall be imposed upon any person, who organizes, manages or acts as a “financier” of any of the illegal activities prescribed in this Section.

The penalty of twelve years and one day to twenty years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a “protector /coddler” of any violator of the provisions under this Section.

Section 9

Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals

The penalty of imprisonment ranging from twelve years and one day to twenty years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who unless authorized by law, shall illegally divert any controlled precursor and essential chemical.

Section 10

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

The penalty of imprisonment ranging from twelve years and one day to twenty years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person who shall deliver, possess with intent to deliver, or manufacture with the intent to deliver equipment, instrument, apparatus and other paraphernalia for dangerous drugs, knowing, or under circumstances where one reasonably should know, that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal any dangerous drug and/or controlled precursor and essential chemical in violation of the Act.

The maximum penalty provided for under this Section shall be imposed upon any person, who uses a minor or a mentally incapacitated individual to deliver such equipment, instrument, apparatus and other paraphernalia for dangerous drugs.

Section 11

Possession of Dangerous Drugs

The penalty of life imprisonment to death a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall possess any dangerous drug in the following quantities, regardless of the degree of purity thereof:

a. 10 grams or more of opium;

b. 10 grams or more of morphine;

c. 10 grams or more of heroin;

d. 10 grams or more of cocaine or cocaine hydrochloride;

e. 50 grams or more of methamphetamine hydrochloride or “shabu;”

f. 10 grams or more of marijuana resin or marijuana resin oil;

g. 500 grams or more of marijuana; and

h. 10 grams or more of other dangerous drugs such as, but not limited to methylenedioxymethamphetamine (MDMA) or “ecstasy”, paramethoxyamphetamine (PMA), trimethoxyamphetamine (TMA), lysergic acid diethylamine (LSD), gamma hydroxybutyrate (GHB) and those similarly designed or newly introduced drugs and their derivatives without having any therapeutic value or if the quantity possessed is as far beyond therapeutic requirements, as determined and promulgated by the Board in accordance with Section 93, Article XI of the Act.

Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows:

1. Life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00) , if the quantity of methamphetamine hydrochloride or “shabu” is ten grams or more but less than fifty grams;

2. Imprisonment of twenty years and one day to life imprisonment and a fine ranging from Four hundred thousand pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00), if the quantities of dangerous drugs are five grams or more but less than ten grams of opium, morphine, heoin, cocaine or cocaine hydrochloride, marijuana resin or marijuana resin oil, methamphetamine hydrochloride or “shabu”, or other dangerous drugs such as, but not limited to, MDMA or “ecstasy”, PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or three hundred grams or more but less than five hundred grams of marijuana; and

3. Imprisonment of twelve years and one day to twenty years and a fine ranging from three hundred (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than five grams of opium, morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin oil, methamphetamine hydrochloride or “shabu”, or other dangerous drugs such as, but not limited to, MDMA or “ecstasy”, PMA, TMA, LSD, GHB, and those similarly designed or newly introduced drugs and their derivatives, without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements; or less than three hundred grams of marijuana.

Section 12

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

The penalty of imprisonment ranging from six months and one day to four years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed upon any person, who unless authorized by law, shall possess or have under his/her control any equipment, instrument, apparatus and other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting or introducing any dangerous drug into the body: Provided, that in the case of medical practitioners and various professionals who are required to carry such equipment, instrument, apparatus and other paraphernalia in the practice of their profession, the Board shall prescribe the necessary implementing guideline thereof.

The possession of such equipment, instrument, apparatus and other paraphernalia fit or intended for any of the purposes enumerated in the preceding paragraph shall be prima facie evidence that the possessor has smoked, consumed, administered to himself/herself, injected, ingested or used a dangerous drug and shall be presumed to have violated Section 15 of the Act.

Section 13

Possession of Dangerous Drugs during Parties, Social Gatherings or Meetings

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 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 phrase “company of at least two person” shall mean the accused or suspect plus at least two others, who may or may not be in possession of any dangerous drug.

Section 14

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

The maximum penalty provided for in Section 12 of the Act shall be imposed upon any person, who shall possess or have under his/her control any equipment, instrument, apparatus and other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body, during parties, social gatherings or meetings, or in the proximate company of at least two persons.

The phrase “company of at least two persons” shall mean the accused or suspect plus at least two others, who may or may not be in possession of any equipment, instrument, apparatus and other paraphernalia for dangerous drugs.

Section 15

Use of Dangerous Drugs

A person apprehended or arrested, who is found to be positive for use of any dangerous drug, after a confirmatory test, shall be imposed a penalty of a minimum of six months rehabilitation in a government center for the first offense, subject to the provision of Article VII of the Act. If apprehended using any dangerous drug for the second time, he/she shall suffer the penalty of imprisonment ranging from six years and one day to twelve years and a fine ranging from Fifty thousand pesos (P50,000.00) to Two hundred thousand pesos (P200,000.00): Provided, that this Section shall not be applicable where the person tested is also found to have in his/her possession such quantity of any dangerous drug provided for under Section 11 of the Act, in which case the provision stated therein shall apply.

Section 16

Cultivation or Culture of Plants classified as Dangerous Drugs or are sources thereof

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) shall be imposed upon any person, who shall plant, cultivate or culture marijuana, opium poppy or any other plant regardless of quantity, which is or may hereafter be classified as a dangerous drug or as a source from which any dangerous drug may be manufactured or derived; Provided, that in the case of medical laboratories and medical research centers which cultivate or culture marijuana, opium poppy and other plants, or materials of such dangerous drugs for medical experiments and research purposes, or for the creation of new types of medicine, the Board shall prescribe the necessary implementing guidelines for the proper cultivation, culture, handling, experimentation and disposal of such plants and materials.

The land or portions thereof and/or greenhouses on which any of said plant is cultivated or cultured shall be confiscated and escheated in favor of the State, unless the owner thereof can prove lack of knowledge of such cultivation or culture despite the exercise of due diligence on his/her part. If the land involved is part of the public domain, the maximum penalty provided for under this Section shall be imposed upon the offender.

The maximum penalty provided for under this Section shall be imposed upon any person, who organizes, manages or acts as a “financier” of any of the illegal activities prescribed in this Section.

The penalty of twelve years and one day to twenty years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a “protector/ coddler” of any violator of the provisions under this Section.

Section 17

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

The penalty of imprisonment ranging from one year and one day to six years and a fine ranging from Ten thousand pesos (P10,000.00) to Fifty thousand pesos (P50,000.00) shall be imposed upon any practitioner, manufacturer, wholesaler, imported, distributor, dealer or retailer who violates or fails to comply with the maintenance and keeping of the original records of transactions on any dangerous drug and/or controlled precursor and essential chemical in accordance with Section 40 of the Act.

An additional penalty shall be imposed through the revocation of the license to practice his/her the revocation of the license to practice his/her profession, in case of a practitioner, or of the business, in case of a manufacturer, seller, imported, distributor, dealer or retailer.

Section 18

Unnecessary Prescription of Dangerous Drugs

The penalty of imprisonment ranging from twelve years and one day to twenty years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) and the additional penalty of the revocation of his/her license to practice shall be imposed upon the practitioner, who shall prescribe any dangerous drug to any person whose physical or physiological condition does not require its use or in the dosage prescribed therein, as determined by the Board in consultation with recognized competent experts who are authorized representatives of professional organizations of practitioners, particularly those who are involved in the care of persons with severe pain.

Section 19

Unlawful Prescription of Dangerous Drugs

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) shall be imposed upon 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.

Section 20

Confiscation and Forfeiture of the Proceed or Instruments of the Unlawful Act, Including the Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and Essential Chemicals

Every penalty imposed for the unlawful importation, sale, trading, administration, dispensation, delivery, distribution, transportation or manufacture or any dangerous drug and/or controlled precursor and essential chemical, the cultivation or culture of plants which are sources of dangerous drugs, and the possession of any equipment, instrument, apparatus and other paraphernalia for dangerous drugs including other laboratory equipment, shall carry with it the confiscation and forfeiture, in favor of the government, of all the proceeds and properties derived from the unlawful act, including, but not limited to, money and other assets obtained thereby, and the instruments or tools with which the particular unlawful act was committed, unless they are the property of a third person not liable for the unlawful act, but those which are not of lawful commerce shall be ordered destroyed without delay pursuant to the provisions of Section 21 of the Act.

After conviction of the Regional Trial Court in the appropriate criminal case filed, the court shall immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion to his/her lawful income: Provided, however, that if the forfeited property is a vehicle, the same shall be auctioned off not later than five days upon order of confiscation or forfeiture.

During the pendency of the case in the Regional Trial Court, no property, or income derived thereform, which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be in custodia legis and no bond shall be admitted for the release of the same.

The proceeds of any sale or disposition of any property confiscated or forfeited under this Section shall be used to pay all proper expenses incurred in the proceedings for the confiscation, forfeiture, custody and maintenance of the property pending disposition, as well as expenses for publication and court costs. The proceeds in excess of the above expenses shall accrue to the Board to be used in its campaign against illegal drugs.

Section 21

Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment

The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

a. The apprehending officer/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 where 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: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizure; Provided, further, 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;

b. Within twenty–four hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for qualitative and quantitative examination;

c. A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty–four hours after the receipt of the subject item/s: Provided, that when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, that a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty–four hours;

d. After the filling of the criminal case, the court shall, within seventy two hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall, within twenty–four hours thereafter, proceed with the destruction or burning of 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 DOH, civil society groups and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender: Provided, that those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes; Provided, further, that a representative sample, duly weighed and recorded is retained;

e. The Board shall then issue a sworn certification as to the fact of destruction or burning o the subject item/s which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In cases of seizures where no person is apprehended and no criminal case is filed, the PDEA may order the immediate destruction or burning of seized dangerous drugs and controlled precursors and essential chemicals under guidelines set by the Board. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board;

f. The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy–two hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney’s office to represent the former;

g. After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty four hours from receipt of the same; and

h. Transitory Provision:

(1) Within twenty–four hours from the effectivity of the Act, dangerous drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of court, be burned or destroyed, in the presence of representative of the court, DOH, Department of Health (DOH) and the accused and/or his/her counsel; and

(2) Pending the organization of the PDEA, the custody, disposition, and burning or destruction of seized/surrendered dangerous drugs provided under this Section shall be implemented by the DOH.

In the meantime that the PDEA has no forensic laboratories and/or evidence rooms, as well as the necessary personnel of its own in any area of its jurisdiction, the existing National Bureau of Investigation (NBI) and Philippine National Police (PNP) forensic laboratories shall continue to examine or conduct screening and confirmatory tests on the seized/surrendered evidence whether these be dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments, paraphernalia and/or laboratory equipment; and the NBI and the PNP shall continue to have custody of such evidence for use in court and until disposed of, burned or destroyed in accordance with the foregoing rules: Provided, that pending appointment/designation of the full complement of the representatives from the media, DOJ, or elected public official, the inventory of the said evidence shall continue to be conducted by the arresting NBI and PNP operatives under their existing procedures unless otherwise directed in writing by the DOH or PDEA, as the case may be.

Section 22

Grant of Compensation, Reward and Award

Compensation, reward and award shall, upon the recommendation of the Board, be granted to any person providing information and to law enforcers participating in the operation, which results in the successful confiscation, seizure or surrender of dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, subject to the compensation, reward and award system promulgated by the Board.

09 July 2018

IRR of Republic Act No. 9165 (part 1)

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