One of the most common defenses in the criminal prosecution of drug cases under the
Comprehensive Dangerous Drugs Act of 2002 (R.A. No. 9165) is the failure of the
prosecution to establish the “chain of custody.” The law prescribes a strict procedure for
handling object evidence, particularly the custody of confiscated dangerous drugs by law
enforcement agencies and by the courts. Non-compliance with the said procedure renders
the evidence non-admissible, resulting in the eventual acquittal of the accused if there is no
other sufficient evidence to convict him.
Suppose a person is arrested pursuant to an entrapment operation effected by the police for
the apprehension of drug traffickers. During the arrest, it is a standard operating procedure
for the law enforcement officer to confiscate the illegal drugs obtained in the crime scene.
Section 21 of R.A. No. 9165 directs the apprehending team having initial custody and
control of the drugs to immediately undertake a physical inventory of the confiscated drugs,
and to take photographs 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. The
law also requires 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.
Within 24 hours upon confiscation of dangerous drugs, these must be submitted to the
PDEA Forensic Laboratory for a qualitative and quantitative examination. The forensic
laboratory examiner must then make a certification of the forensic laboratory examination
results. The said certification must be issued within 24 hours after the receipt of the subject
item/s.
What if the confiscated drugs are so numerous as to render it impossible to conduct an
examination within 24 hours of confiscation? In this case, a partial laboratory examination
report shall be provisionally issued stating the quantities of dangerous drugs still to be
examined by the forensic laboratory. However, a final certification must be issued on the
completed forensic laboratory examination within the next 24 hours. In other words, the law
only allows an extended period of 24 hours.
While the PDEA has custody of the confiscated drugs, the police agents shall file the
complaint with the prosecutor, who in turn files the criminal Information in court. Seventy-
two (72) hours after filing, the court must conduct an ocular inspection of the confiscated,
seized and/or surrendered dangerous drugs. Within 24 hours thereafter, the PDEA shall
then proceed with the destruction or burning of the confiscated drugs, 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 DOJ, civil society
groups and any elected public official.
The PDEA Board afterward shall issue a sworn certification as to the fact of destruction or
burning of the subject item/s together with the representative sample/s in the custody of the
PDEA. The sworn certification must be submitted to the court having jurisdiction over the
case. In all instances, the representative sample/s shall be kept to a minimum quantity as
determined by the Board.
During the trial, the prosecution has the burden of proving the chain of custody — i.e., the
prosecutor must prove that the sample of drugs being presented into evidence forms part of
the inventory of drugs at the time and place of confiscation. Moreover, the prosecutor must
prove that the said drugs which are being presented into evidence are the same substances
taken from the possession of the accused.
If there are substantial gaps in the testimony of witnesses on the chain of custody of the
seized dangerous drugs, these raise doubts about the authenticity of the evidence
presented in court, and therefore the accused cannot be convicted beyond reasonable
doubt.
