Guidelines on the Implementing Rules and Regulations (IRR) of Section 21 of Republic Act No. 9165 as Amended by Republic Act No. 10640

May 28, 2015

GUIDELINES ON THE IMPLEMENTING RULES AND REGULATIONS (IRR) OF SECTION 21 OF REPUBLIC ACT NO. 9165 AS AMENDED BY REPUBLIC ACT NO. 10640

WHEREAS, Section 21 of Republic Act (RA) No. 9165 provides for rules on the 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; cSEDTC

WHEREAS, on July 22, 2014, RA No. 10640, entitled An Act to Further Strengthen the Anti-Drug Campaign of the Government, Amending for the Purpose Section 21 of Republic Act No. 9165, otherwise known as "The Comprehensive Dangerous Drugs Act of 2002", was enacted amending Section 21 of RA No. 9165;

WHEREAS, Section 2 of RA No. 10640 provides that the Philippine Drug Enforcement Agency (PDEA) shall issue the necessary guidelines on the Implementing Rules and Regulations (IRR) of Section 21 of RA No. 9165 in consultation with the Department of Justice (DOJ) and relevant sectors to curb increasing drug cases;

WHEREAS, to effectively implement the provisions of Section 21 of RA No. 9165, as amended by RA No. 10640, the PDEA, in consultation with the DOJ and relevant sectors, hereby promulgate these guidelines:

SECTION 1. Implementing Guidelines. — 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. Marking, Inventory and Photograph; Chain of Custody Implementing Paragraph "a" of the IRR

A.1. The apprehending or seizing officer having initial custody and control of the seized or confiscated dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, mark, inventory and photograph the same in the following manner:

A.1.1. The marking, physical inventory and photograph of the seized/confiscated items shall be conducted where the search warrant is served.

A.1.2. The marking is the placing by the apprehending officer or the poseur-buyer of his/her initial and signature on the item/s seized.

A.1.3. In warrantless seizures, the marking of the seized items in the presence of the violator shall be done immediately at the place where the drugs were seized or at the nearest police station or nearest office of the apprehending officer/team, whichever is practicable. The physical inventory and photograph shall be conducted in the same nearest police station or nearest office of the apprehending officer/team, whichever is practicable.

A.1.4. In cases when the execution of search warrant is preceded by warrantless seizures, the marking, inventory and photograph of the items recovered from the search warrant shall be performed separately from the marking, inventory and photograph of the items seized from warrantless seizures.

A.1.5. The physical inventory and photograph of the seized/confiscated items shall be done in the presence of the suspect or his representative or counsel, with elected public official and a representative of the National Prosecution Service (NPS) or the media, who shall be required to sign the copies of the inventory of the seized or confiscated items and be given copy thereof. In case of their refusal to sign, it shall be stated "refused to sign" above their names in the certificate of inventory of the apprehending or seizing officer.

A.1.6. A representative of the NPS is anyone from its employees, while the media representative is any media practitioner. The elected public official is any incumbent public official regardless of the place where he/she is elected.

A.1.7. To prevent switching or contamination, the seized items, which are fungible and indistinct in character, and which have been marked after the seizure, shall be sealed in a container or evidence bag and signed by the apprehending/seizing officer for submission to the forensic laboratory for examination.

A.1.8. In case of seizure of plant sources at the plantation site, where it is not physically possible to count or weigh the seizure as a complete entity, the seizing officer shall estimate its count or gross weight or net weight, as the case may be. If it is safe and practicable, marking, inventory and photograph of the seized plant sources may be performed at the plantation site. Representative samples of prescribed quantity pursuant to Board Regulation No. 1, Series of 2002, as amended, and/or Board Regulation No. 1, Series of 2007, as amended, shall be taken from the site after the seizure for laboratory examination, and retained for presentation as the corpus delicti of the seized/confiscated plant sources following the chain of custody of evidence.

A.1.9. Noncompliance, under justifiable grounds, with the requirements of Section 21 (1) of RA No. 9165, as amended, shall not render void and invalid such seizures and custody over the items provided the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team.

A.1.10. Any justification or explanation in cases of noncompliance with the requirements of Section 21 (1) of RA No. 9165, as amended, shall be clearly stated in the sworn statements/affidavits of the apprehending/seizing officers, as well as the steps taken to preserve the integrity and evidentiary value of the seized/confiscated items. Certification or record of coordination for operating units other than the PDEA pursuant to Section 86 (a) and (b), Article IX of the IRR of RA No. 9165 shall be presented.

A.1.11. The chain of custody of evidence shall indicate the time and place of marking, the names of officers who marked, inventoried, photographed and sealed the seized items, who took custody and received the evidence from one officer to another within the chain, and further indicating the time and date every time the transfer of custody of the same evidence were made in the course of safekeeping until submitted to laboratory personnel for forensic laboratory examination.

 The latter shall continue the chain as required in paragraph B.5 below.

B. Laboratory Examination, Custody and Report Implementing Paragraphs "b" and "c" of the IRR

B.1. Within twenty-four (24) 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 PDEA Forensic Laboratory for a qualitative and quantitative examination, subject as provided further below:

B.1.1. In support of the PDEA, the forensic or crime laboratories of the Philippine National Police (PNP) and the National Bureau of Investigation (NBI) shall conduct qualitative and quantitative examination of the seized/confiscated or surrendered items submitted by the anti-illegal drug operating units/task forces, or apprehending officer/team consistent with paragraph E.2.4 of these guidelines. SDAaTC

B.1.2. Where the violations of RA No. 9165 require laboratory examination of the seized/confiscated items, the positive result of the qualitative examination rendered by the forensic chemist shall serve to support the criminal charge/s.

B.1.3. Quantitative examination may be done upon request by the apprehending team or upon issuance of court order when the determination of purity of the seized/confiscated dangerous drugs is required by law.

B.2. A certification or chemistry report of the forensic laboratory examination results, which shall be done by the forensic examiner, shall be issued immediately upon the receipt of the subject item/s within the reglementary period that would enable the apprehending officer/team to file the criminal charge/s with the prosecutor's office against the violator/s as prescribed by law.

B.3. When the volume of dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals would not allow the completion of testing within the time frame to file the criminal charge/s against the violator/s, a partial laboratory examination report shall be provisionally issued by the forensic chemist, stating therein the quantities of dangerous drugs or controlled precursors and essential chemicals still to be examined by the forensic laboratory. Provided, that a final certification or chemistry report shall be issued immediately upon completion of the said examination.

B.4. In provinces where no forensic or crime laboratories are equipped and operational for scientific drug analysis, or when the distance from the existing PNP, NBI or PDEA forensic or crime laboratory to the place of seizure/confiscation of the subject items or office of the apprehending officer/team requires several hours of travel, copy of the facsimile or any electronic transmission of the certification or chemistry report of the laboratory examination results issued to the apprehending officer/team for submission to the prosecutor's office concerned shall be considered as sufficient copy of laboratory report for the filing of criminal charge/s with the prosecutor's office. Provided the original certification or chemistry report shall be forwarded and submitted immediately by the apprehending officer/team to the prosecutor's office.

B.5. In any case, the chain of custody of the seized/confiscated items received from the apprehending officer/team, and examined in the forensic or crime laboratory shall be observed, where it shall document the chain of custody each time a specimen is handled, transferred or presented in court until its disposal, and every individual in the chain of custody shall be identified following the laboratory control and chain of custody form.

B.6. To expedite the immediate disposition and destruction of seized/confiscated plant sources of dangerous drugs at the eradication site, the seizing officer or forensic chemist shall get and preserve their representative samples, after their seizure and confiscation, and perform field or screening test at the site, as far as practicable. The release of the certification or chemistry report shall be after the confirmatory test of the samples examined.

C. Filing of Complaint and Destruction of Confiscated or Seized Items Implementing Paragraphs "d" and "e" of the IRR

C.1. In cases of seizure or confiscation where a criminal case is filed, the following shall be performed:

C.1.1. Appropriate criminal charges must be filed in the prosecutor's office against the arrested violator/s within the reglementary period provided by law.

C.1.2. When the seizure is executed by virtue of search warrant, the return must be filed with the Court which issued the search warrant with the request to take custody of the seized/confiscated items if the criminal case has been filed with the prosecutor's office.

C.1.3. (a) Request to take custody of she marked and inventoried items seized/confiscated by virtue of search warrant must be supported or accompanied by the following:

1) Motion to take/retain custody of the seized/confiscated or surrendered dangerous drugs, plant sources of dangerous drugs, or controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment taken from the site by the apprehending officer;

2) Certificate of inventory;

3) Photograph showing the seized items and witnesses;

4) Certification or chemistry report of the results of the laboratory examination;

5) Affidavits of apprehending officers/team;

6) Accomplished chain of custody form;

7) Accomplished authority to operate form;

8) Accomplished pre-operation report form;

9) Certification/record of coordination stated in paragraph A.1.10 of these guidelines; and

10) If applicable, record/certification of orderly search, the sworn statements of the apprehending or seizing officers stating the circumstances and justification for non-compliance with inventory and photograph and/or presence of the prescribed witnesses during the inventory and photograph, and the steps taken to preserve the integrity and the evidentiary value of the seized/confiscated items.

 (b) The above requirements stated in paragraph C.1.3, except its number "1", for the filing of criminal charges shall also apply in buy-bust operation.

C.1.4. In cases of bulk or voluminous seizures, where it is not practical or safe to bring the seized/confiscated physical items or evidence to the issuing court, the presentation and examination of certificate of the inventory and the photographs, as supported by the same documentary exhibits mentioned in paragraph C.1.3, with motion to take or retain custody of the seized/confiscated items, are sufficient for purposes of the return of search warrant. acEHCD

C.1.5. After filing the criminal charges with the prosecutor's office, the apprehending officer/team or PDEA shall file urgent motion for the immediate destruction of the seized/confiscated or surrendered dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment, with prayer for ocular inspection within seventy-two (72) hours, with the Regional Trial Court (RTC) of the city or province where the confiscation/seizure and/or surrender took place, with prior written conformity of the Provincial or City Prosecutor of the province or city, as the case may be, where the confiscation/seizure and/or surrender took place or the Prosecutor General or his duly authorized representative which shall be indicated in the pleading. The urgent motion for destruction shall be heard and resolved within five (5) days upon actual receipt.

C.1.6. Upon hearing the motion for destruction, the Court shall, within seventy-two (72) hours, conduct an ocular inspection where the representative samples shall be taken, marked and sealed in the presence of the arrested violator, his/her counsel or representative, laboratory personnel, and such other prescribed witnesses, and shall be retained in the custody of the forensic laboratory of PDEA, PNP or NBI, as the case may be, to serve as the evidence in criminal case against the violator, in order to proceed with immediate destruction of the subject drug evidence/items. The taking of the representative samples to serve as the corpus delicti in the trial of the case shall not be prejudiced by the absence of the accused/offender who is at large during the taking of the representative samples. The trial court where the criminal case is subsequently filed shall take judicial notice of the proceedings thereof.

C.1.7. If a separate motion/petition for destruction was not filed in Court during the preliminary investigation stage of the case of the accused, an urgent motion shall be filed with the Court where the information is being heard, with prayer for ocular inspection within seventy-two (72) hours, for the immediate destruction of the seized/confiscated or surrendered dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment. The urgent motion for destruction shall be heard and resolved within five (5) days from receipt of the motion. During the conduct of the ocular inspection, representative samples shall be taken, marked and sealed in the presence of the arrested violator, his/her counsel or representative, laboratory personnel, and such other prescribed witnesses, and to be retained in the custody of the forensic laboratory of PDEA, PNP or NBI, as the case may be, to serve as the evidence in court in the prosecution against the violator, before proceeding with destruction of the subject drug evidence/items. This taking of the representative samples to serve as the corpus delicti in the trial of the case shall not be prejudiced by the absence of the accused/violator who is at large.

C.1.8. Upon receipt of the order of destruction, PDEA shall proceed with the destruction or burning of the subject drug evidence/item within twenty-four (24) hours, or as far as practicable, in the presence of the prescribed witnesses.

C.1.9. In cases where the plantation site is infested by insurgents, or inaccessible by motor vehicles and transmission communication signal, or the weather condition, calamity or disaster found therein poses danger on the safety of the apprehending officers/team and the witnesses, the destruction of the plant sources even without the order of destruction will immediately be undertaken.

C.1.10. The apprehending officer/team or PDEA shall preserve all the seized items as evidence in court until the court terminates the case, if the amount of the seized/confiscated dangerous drugs, plant sources of dangerous drugs or controlled precursors and essential chemicals is equal to or less than the amount for retention as prescribed by the Dangerous Drugs Board regulation.

C.2. In cases of seizures or confiscations, where no violator is apprehended and no criminal case is filed, the following shall be performed.

C.2.1. If the seizure or confiscation is done by virtue of search warrant, the guidelines mentioned in paragraphs C.1.2, C.1.3, and C.1.4 above shall be observed.

C.2.2. The order to proceed with the immediate destruction of the seized/confiscated or surrendered confiscated dangerous drugs, plant sources of dangerous drugs or controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall be secured from the Director General of PDEA or his authorized representative in the Regional Office of PDEA.

C.2.3. Immediate destruction of burning of the subject items for destruction shall proceed as scheduled, provided, that appropriate inventory of subject items for destruction in the presence of witnesses, forensic laboratory examination and prescribed reports have been carried out. Provided, further, that immediate destruction of the plant sources without prior order of destruction shall proceed when any justifiable ground mentioned in paragraph C.1.9 above is present.

C.3. Destruction Process:

C.3.1. The cost of disposition and destruction of such dangerous drugs, plant sources at the plantation site, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall be borne by the accused or offender without prejudice to the funding requirements stated in paragraph E.2.2 of these guidelines. Provided, That items of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes: Provided, further, That a representative sample of such dangerous drugs, and its plant sources, controlled precursors and essential chemicals, duly weighed and recorded, shall be retained when a criminal case is filed.

C.3.2. Dangerous drugs and controlled precursors and essential chemicals shall be disposed off by means in the following methods:

(a) Thermal destruction method in accordance with applicable environmental laws. The PDEA may engage the professional services of third parties with thermal facilities covered by valid and subsisting permits and clearances issued by appropriate government agencies; or

(b) Other lawful appropriate methods as may be authorized by the Board, in consultation with the DENR.

(c) Marijuana and plant sources of dangerous drugs shall be destroyed by burning on the site of eradication activity and in open field. Thereafter, the burnt marijuana plants shall be buried underground.

C.3.3. The destruction or burning of seized/confiscated or surrendered dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall be done 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 Department of Justice/National Prosecution Service, civil society groups and any elected public official.

C.3.4. The Board, through the Director General of PDEA or Regional Director of PDEA, shall issue a sworn certification as to the fact of destruction or burning of the subject items, together with the retained quantity of the representative samples, with explanation in cases of destruction of plant sources without prior order of destruction under justifiable grounds in paragraph C.1.9, and shall be submitted to the court having jurisdiction over the case. If the court having jurisdiction over the case directs to submit to the court the representative samples after they have been taken, marked and sealed as prescribed in paragraphs C.1.6 and C.1.7, the office or personnel having custody of the same shall immediately submit them to the court. In all instances, the representative samples shall be kept to a minimum quantity as prescribed under existing Dangerous Drugs Board regulation.

C.3.5. The absence of the accused or offender who is at large during the destruction or burning shall not prejudice the criminal case/s filed against him/her, provided that due notice of the destruction has been issued to him/her on his/her known address on record.

D. Participation of the Offender in the Proceedings Implementing Paragraph "f" of the IRR

D.1. 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. SDHTEC

D.2. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to him/her or his/her counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice, or the Presiding Judge of the court having jurisdiction of the case, or the Chief of Public Attorney's Office in the province or city where the destruction will take place, as the case may be, shall appoint a member of the public attorney's office to represent the accused.

D.3. To carry out the intent of the provisions of Section 21 of RA No. 9165, all the above proceedings in paragraphs "a" to "e" of the IRR shall be continued, even in the absence or objection of the alleged offender or his/her representative or counsel, provided that the absence or objection of the offender or his/her representative or counsel shall be duly noted in writing.

E. Lead Agency over the Custody and Destruction of Drug Items/Representative Samples Implementing Paragraphs "g" and "h" of the IRR

E.1. The PDEA shall proceed with the destruction of drug evidence/representative samples presented as evidence in criminal cases before the courts, if the judgment in the criminal case shall include a disposition directing to turn-over to PDEA the said drug evidence/representatives samples. The court shall furnish a copy of the judgment to the PDEA. If the same directive of turn-over is not included in the judgment of criminal cases by the court, the trial prosecutor shall request the court for leave to turn-over such drug evidence or representative samples to PDEA, or undertake to inform the latter of the final termination of the case with a copy of the judgment. After receipt of the judgment, the PDEA shall immediately retrieve from the custodian officer and take custody of the said drug evidence/representative samples for its proper destruction within twenty-four (24) hours, or as far as practicable.

E.2. Transitory Provision and PDEA's Undertakings

E.2.1. The PDEA shall take charge in the custody, proper disposition and destruction of all seized/surrendered dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals; instruments/paraphernalia and/or laboratory equipment, and their representative samples, from all law enforcement agencies, forensic laboratories, evidence storage facilities, offices of public prosecutors and courts, if no longer needed for purposes of evidence in court.

E.2.2. To comply with the immediate disposition and destruction or burning of such seized/confiscated or surrendered items, the PDEA shall request sufficient amount or fund in its annual general appropriations for budgetary support from the Department of Budget and Management (DBM).

E.2.3. To ensure that the cost of disposition or destruction of such seized/confiscated or surrendered items shall be borne by the offender, the PDEA shall file a motion or petition before the Courts having jurisdiction of the case for the satisfaction of this cost in a forfeiture proceeding against the property of the offender pursuant to Section 20 of RA No. 9165 and may avail such other remedies or civil actions under the laws or Rules of Court. The satisfaction of this cost shall be refunded to PDEA to fund its continuing program in destructing or burning of such seized/confiscated or surrendered items.

E.2.4. In the meantime that PDEA has no forensic laboratories and/or evidence storage facilities, as well as the necessary personnel of its own in any area of its jurisdiction, as required in Section 84 (f), Article IX of RA No. 9165, the existing PNP and NBI forensic laboratories shall continue to conduct qualitative and quantitative examinations on the seized/confiscated or surrendered evidence whether these be dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment. The PNP and NBI forensic laboratories shall continue to have custody of the representative samples of such evidence for use in court, and shall thereafter turn-over the same to PDEA for its destruction pursuant to paragraph E.2.1 above. AScHCD

SECTION 2. Effective Implementation. — The PDEA shall initiate or collaborate to ensure the effective implementation of these guidelines, including the appropriate legal actions or measures to pursue under the law or applicable rules and regulations in cases of violation of these guidelines that resulted to unsuccessful prosecution or dismissal of drug case/s.

SECTION 3. Repealing Clause. — All guidelines, circulars, resolutions, regulations, orders and other issuances or parts thereof issued or promulgated in the implementation of Section 21, RA No. 9165 as amended, which are inconsistent with these guidelines are hereby repealed, amended, and modified accordingly.

SECTION 4. Amendments. — Any amendment or modification in these guidelines shall be done in consultation with the DOJ and other relevant sectors, pursuant to Section 2 of RA No. 10640.

SECTION 5. Separability Clause. — If any provision or part hereof is held invalid or unconstitutional, the provisions not otherwise affected shall remain valid and subsisting.

SECTION 6. Effectivity. — These guidelines shall take effect fifteen (15) days after its publication in one (1) newspaper of general circulation and after its registration with the Office of the National Administrative Register (ONAR), UP Law Center, Quezon City. HESIcT

Done in PDEA, Quezon City this 28th day of May 2015.

(SGD.) UNDERSECRETARY ARTURO G. CACDAC, JR. CESEDirector General

Published in The Philippine Daily Inquirer on July 15, 2015.