Rule on the Destruction and Disposal of Seized Dangerous Drugs, Other Substances, and Instruments Prior to the Filing of an Information

February 16, 2021

A.M. No. 21-02-01-SC

RULE ON THE DESTRUCTION AND DISPOSAL OF SEIZED DANGEROUS DRUGS, OTHER SUBSTANCES, AND INSTRUMENTS PRIOR TO THE FILING OF AN INFORMATION

WHEREAS, there is a need to immediately destroy and dispose confiscated, seized or surrendered dangerous drugs, controlled precursors, and essential chemicals, instruments, paraphernalia, and laboratory equipment in order that they do not find their way back to the market or be used again for nefarious activities; HTcADC

WHEREAS, Section 21 (4), Republic Act No. (R.A.) 9165, as amended, provides for the procedure for the destruction of seized drugs and instruments, but only in instances where a criminal case has already been filed in court;

WHEREAS, there are no prescribed rules for the destruction of seized drugs and instruments in cases where the criminal information has not yet been filed in court as these cases are still under investigation, preliminary investigation or reinvestigation by the law enforcement agents or the prosecutors;

WHEREAS, in cases where no criminal information has yet been filed, petitions or motions filed before the courts for ocular inspection and eventual destruction of seized drugs and instruments are consequently being denied for absence of a specific rule;

WHEREAS, there is an urgency to provide rules of procedure for the immediate destruction and disposal of seized drugs and instruments in cases where the criminal information has not yet been filed in court;

WHEREAS, Section 5 (5), Article VIII, Constitution, provides, among others, that the Supreme Court has the power to promulgate rules concerning practice and procedure in all courts;

WHEREAS, in Garcia v. Sandiganbayan, 1 the Court explained that in "authoriz(ing) the issuance of a precautionary HDO (Hold Departure Order) even prior to the filing of an information in court when justified under the circumstances," it used its "inherent powers to prevent miscarriage of justice";

WHEREAS, in like manner, the Court may use its inherent powers to authorize trial courts to act on applications for the immediate destruction and disposal of seized drugs and instruments even prior to the filing of the corresponding criminal information;

WHEREAS, immediately after the seizure of dangerous drugs, controlled precursors, and essential chemicals, instruments, paraphernalia, and laboratory equipment, and after compliance with Section 21 (1), 2 Article II of R.A. 9165, as amended by R.A. 10640, an application may be filed before the courts for the destruction and disposal of seized dangerous drugs, and instruments;

NOW, THEREFORE, the Court resolves to APPROVE the "Rule on the Destruction and Disposal of Seized Dangerous Drugs, Other Substances, and Instruments Prior to the Filing of an Information."

(SGD.) DIOSDADO M. PERALTAChief Justice

(SGD.) ESTELA M. PERLAS-BERNABESenior Associate Justice

(SGD.) MARVIC M.V.F. LEONENAssociate Justice

(SGD.) ALFREDO BENJAMIN S. CAGUIOAAssociate Justice

(SGD.) ALEXANDER G. GESMUNDOAssociate Justice

(SGD.) RAMON PAUL L. HERNANDOAssociate Justice

(SGD.) ROSMARI D. CARANDANGAssociate Justice

(SGD.) AMY C. LAZARO-JAVIERAssociate Justice

(SGD.) HENRI JEAN PAUL B. INTINGAssociate Justice

(SGD.) RODIL V. ZALAMEDAAssociate Justice

(SGD.) MARIO V. LOPEZAssociate Justice

(SGD.) EDGARDO L. DELOS SANTOSAssociate Justice

(SGD.) SAMUEL H. GAERLANAssociate Justice

(SGD.) RICARDO R. ROSARIOAssociate Justice

(SGD.) JHOSEP Y. LOPEZAssociate Justice

ATTACHMENT

Rule on the Destruction and Disposal of Seized Dangerous Drugs, Other Substances, and Instruments Prior to the Filing of an Information

SECTION 1. Where and When to File the Application for Destruction and Disposal. — Where the dangerous drugs, other substances, or instruments were seized by virtue of a search warrant, the application for their destruction and disposal shall be filed by the law enforcement agent or the prosecutor before the court which issued the search warrant immediately after the seizure and after compliance with Section 21 (1), Article II at R.A. 9165, as amended by R.A. 10640. aScITE

If the dangerous drugs, other substances, and equipment were seized without a search warrant, the application for their destruction and disposal shall be filed by the law enforcement agent or the prosecutor before the court which has territorial jurisdiction over the case and the place where the dangerous drugs, other substances, and instruments were found and seized, immediately after the seizure and after compliance with Section 21 (1), Article II at R.A. 9165, as amended by R.A. 10640.

SECTION 2. Ocular Inspection, If Necessary. — If the seized drugs amount to one (1) kilogram or more, or if the seized instruments and equipment cannot be physically brought to court, the judge shall conduct an ocular inspection of the same within seventy-two (72) hours from the time the application is filed.

SECTION 3. Order for Retention of Representative Sample. — Within twenty-four (24) hours from the conduct of the ocular inspection, the court shall order the retention of a representative sample of the seized drugs which shall be kept in the forensic laboratory of the operating unit which seized the drugs. In cases where the seized drugs are physically brought to the court, the court shall order the retention of the representative sample of the seized drugs also within twenty-four (24) hours therefrom.

The taking of the representative sample shall be witnessed by the following: (1) person from whom such items were seized, or his or her representative or counsel, if possible; (2) the elected public official who witnessed the physical inventory and photograph of the seized drugs; (3) a responsible official from the National Prosecution Service or a representative from the media, if he or she witnessed the physical inventory and photograph of the seized drugs; (4) the law enforcement agent/s who seized the drugs; and, (5) the forensic laboratory personnel.

The absence of the individual from whom the drugs were seized, or his or her representative or counsel, during the taking of the representative sample, shall not affect the integrity and identity of the seized dangerous drugs.

SECTION 4. Order for Destruction and Disposal. — Within the same twenty-four (24) hours from the conduct of the ocular inspection, or in the same Order for the retention of representative sample, the court shall also order the immediate destruction and disposal of the remaining seized drugs or instruments and equipment.

Meanwhile, prior to their actual destruction and disposal, the seized drugs shall be immediately sent and delivered to the Drug Forensic Center of the Philippine Drug Enforcement Agency (PDEA). Consequently, the Order for destruction and disposal of the seized drugs shall include a directive to the law enforcement agents who seized the drugs to immediately deliver and turn them over to the PDEA for destruction and disposal, unless the PDEA already has custody of the seized drugs.

SECTION 5. Use of Seized Drugs or Controlled Chemicals for K9 Training of Detector Dogs for Narcotics. — Upon proper motion, the court, using its sound discretion, may allow the proper and lawful use of seized drugs and controlled chemicals no longer needed as evidence for the training of K9 detector dogs for narcotics, subject to compliance with the established guidelines issued by the Director General, PDEA, pursuant to Section 8-A, Board Regulation No. 1, Series of 2002, as amended, Dangerous Drugs Board.

SECTION 6. Actual Destruction. — The actual destruction of seized drugs and instruments shall be witnessed by the following: (1) person from whom such items were seized, or his or her representative or counsel, if possible; (2) the elected public official who witnessed the physical inventory and photograph of the seized drug; (3) a responsible official from the National Prosecution Service or a representative from the media, if he or she witnessed the physical inventory and photograph of the seized drugs; (4) the law enforcement agent/s who seized the drugs; and, (5) the forensic laboratory personnel.

The absence of the individual from whom the drugs were seized, or his or her representative or counsel, during the actual destruction, shall not affect the integrity and identity of the seized dangerous drugs.

SECTION 7. Recording of Ocular Inspection, Taking of Representative Sample, and Actual Destruction. — The ocular inspection, if it takes place, the taking of representative sample, and the actual destruction of seized drugs and items shall be photographed and video-recorded by the party who filed the application. The photographs and video-recordings shall be preserved for purposes of authentication when the corresponding information is eventually filed.

SECTION 8. Filing of Report. — Within twenty-four (24) hours from the destruction and disposal of the seized drugs and items, the applicant shall file a report to the court, indicating therein a brief summary of the proceedings and attaching thereto photographs and recordings of the destruction and disposal process.

SECTION 9. Duty of the Court upon Receipt of the Report. — If the court is satisfied with the report, and without necessarily setting it for hearing, the court shall issue an order approving the report, and shall retain the records of the case, including the attachments, until such time that the corresponding information is filed with the proper court.

SECTION 10. Where the Criminal Information is Filed. — If the criminal information is filed already before the court other than the court that issued the search warrant or order for destruction and disposal, the records of the search warrant and order for destruction and disposal, including attachments, shall be consolidated with the court where the criminal information is filed.

In cases where no search warrants were issued, the criminal information shall be filed before the court that issued the order for destruction and disposal.

SECTION 11. Effectivity. — This Rule shall take effect on March 16, 2021 following its publication in two (2) newspapers of general circulation. HEITAD

Footnotes

1. G.R. Nos. 205904-06, October 17, 2018.

2. (1) The apprehending team having initial custody and control of the dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment shall, immediately after seizure and confiscation, conduct a physical inventory of the seized items and photograph 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, with an elected public official and a representative of the National Prosecution Service or the media 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 seizures: Provided, finally, That non-compliance of 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 and custody over said items.

Published in the Philippine Daily Inquirer and Manila Bulletin on February 28, 2021.