INRODUCTION

The Comprehensive Dangerous Drugs Act of 2002 (R.A. 9165)

was enacted by the government to deal with its problem with illegal
drugs, it provides for stiffer penalties including the inclusion of
capital punishment. Congress provided a more comprehensive
classification of dangerous drugs and conferred to general
standards of the international community. The purpose of which is
to safeguard the integrity of the States territory and well-being of
its citizens.

ISSUE

Whether or not Section 12 of RA 9165 (Possession of Equipment,

Instruments, Apparatus and other Paraphernalia) can be absorbed
in Section 15 (Use of Dangerous Drugs).

Section 12. Possession of Equipment, Instrument,

Apparatus and Other Paraphernalia for Dangerous Drugs. -
The penalty of imprisonment ranging from six (6) months
and one (1) day to four (4) 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
guidelines 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 this Act.
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 (6) months
rehabilitation in a government center for the first offense,
subject to the provisions of Article VIII of this Act. If
 apprehended using any dangerous drug for the second
time, he/she shall suffer the penalty of imprisonment
ranging from six (6) years and one (1) day to twelve (12)
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 this Act, in which case the
provisions stated therein shall apply.

DISCUSSION

Possession of equipment, instruments, apparatus and other

paraphernalia is generally a separate offense from the use of
dangerous drugs; however, the possession of said instruments can
be absorbed by the use thereof.

Possession of instruments for administering drugs is

punished separately. But if possession of pipe is when he is
smoking the same, possession of pipe is absorbed. If he is
found possessing the pipe and opium and he is not
smoking, two crimes are committed; illegal possession of
opium pipe.1

In this case, if the accused was smoking at the time when he

was apprehended and the equipment were seized while the he was
smoking, ingesting or using dangerous drugs through said
instruments, then the crime committed should fall within Section
15 of RA 9165 or the Comprehensive Dangerous Drugs Act of 2002.
The crimes cannot be considered as distinct in themselves since use
of dangerous drugs was the principal crime and to use such
necessarily includes the possession of paraphernalia. Use of
dangerous drugs under Section 15 of RA 9165 may absorb
Possession of equipment, instrument, apparatus and other
paraphernalia under Section 12 of RA 9165.

Use is defined in the Comprehensive Dangerous Drugs Act of

2002 as:

1
Notes and Cases on Special Penal Laws by Leonor D. Boado, page 458
 Any act of injecting, intravenously or intramuscularly, of
consuming, either by chewing, smoking, sniffing, eating,
swallowing, drinking or otherwise introducing into the
physiological system of the body, and of the dangerous
drugs.2

On the other hand, an Instrument is defined as:

Any thing that is used in or intended to be used in any

manner in the commission of illegal drug trafficking or
related offenses3

An instrument may either be for personal use or intended

for use or designed for the purpose of manufacturing dangerous
drugs.

The use of dangerous drugs necessarily includes the

possession of paraphernalia to facilitate the act of smoking,
ingesting or using such substances. The act of possession of
instruments is inherent and necessarily connected with the use of
dangerous drugs. The use referred to in this instance is through
personal use thereof. This difference or contrast is of great
significance and would highly have a profound effect if the accused
is facing and is charged for possession of paraphernalia under
Section 12 and Section 15 of RA 9165 or The Comprehensive
Dangerous Drugs Act.

There is also a presumption under the law that the possession

of paraphernalia is a prima facie evidence of the use of dangerous
drugs. The Comprehensive Dangerous Drugs Act of 2002 states
that:

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,

2
Section 3, Article I of the Comprehensive Dangerous Drugs Act of 2002 (R.A. 9165)
3
Ibid.
 ingested or used a dangerous drug and shall be presumed
to have violated Section 15 of this Act.4

The presumption is that possession of equipment, instrument,

apparatus and other paraphernalia is absorbed by the use of
dangerous drugs. An accused is presumed to be a user rather than
a possessor. The law is more compassionate to users of dangerous
drugs at first offense as it encourages rehabilitation. A penalty of a
minimum of six (6) months rehabilitation in a government center for
the first offense is imposed upon those who use dangerous drugs as
stated in Section 15 of R.A. 9165.5

It can be gleaned from the presumption stated in the last

paragraph of Section 12 of R.A. 9165 that the law intends to give
chance for these drug dependents for rehabilitation and to re-
introduce them to the society to become productive citizens.

In the Case of Jaime D. Dela Cruz vs. People of the Philippines6,

the Court expressed that:

In order to effectively fulfill the intent of the law to

rehabilitate drug users, this Court thus calls on law
enforcers and prosecutors in dangerous drugs cases to
exercise proper discretion in filing charges when the
presence of dangerous drugs is only and solely in the form
of residue and the confirmatory test required under Sec. 15
is positive for use of dangerous drugs. In such cases, to
afford the accused a chance to be rehabilitated, the filing of
charges for or involving possession of dangerous drugs
should only be done when another separate quantity of
dangerous drugs, other than mere residue, is found in the
possession of the accused as provided for in Sec. 15.
This leniency may also be applied not only in the case of
possession of dangerous drugs but also in possession of drug
paraphernalia or instruments in which the accused was using
dangerous drugs with the aid of said instrument.

The rule that penal laws shall be interpreted or construed

liberally in favor of the accused and strictly against the government
may also apply in the instances given above. The Court may adopt
this basic principle of criminal law and choose an application or
interpretation that is more favorable to the accused, depending
4 Section 12, Article II of the Comprehensive Dangerous Drugs Act of 2002 (R.A. 9165)
5 Section 15, Article II of the Comprehensive Dangerous Drugs Act of 2002 (R.A. 9165)
6
Jaime D. Dela Cruz vs. People of the Philippines, G.R. No. 200748, July 23, 2014
upon the circumstances of the case. The Court may consider
certain factors such as if such is a first offense and that the
accused would benefit greatly in imposing a lower penalty and in
giving the accused a chance for rehabilitation.

The doctrine of absorption of crimes is peculiar to criminal law

and generally applies to crimes punished by the same statute.7 The
doctrine states that the ingredients of a crime form part and parcel
thereof, and hence, are absorbed by the same and cannot be
punished either separately therefrom. The crime of possession of
instruments or paraphernalia if inherent in the use of dangerous
drugs may be considered as a single offense. In the above
mentioned instances, possession of equipment, instrument,
apparatus and other paraphernalia for dangerous drugs may be
absorbed in the crime of use of dangerous drugs of R.A. 9165.

7 People v. Hernandez [99 Phil. Rep 515 (1956)]