PDEA IRR on Custody and Disposition of Drugs

Legal basis and purpose of coverage

The guidelines implement Section 21 of Republic Act No. 9165 on custody and disposition of confiscated, seized, and/or surrendered items.
Republic Act No. 10640 amends paragraphs 1 and 3 of Section 21 of Republic Act No. 9165, strengthening anti-drug custody and disposition rules.
The guidelines are required by Section 2 of Republic Act No. 10640, which directs PDEA to issue necessary guidelines on the IRR of Section 21 of Republic Act No. 9165 in consultation with the Department of Justice (DOJ) and relevant sectors to curb increasing drug cases.
The guidelines govern custody, laboratory examination, complaint filing support, and destruction/burning processes for the covered evidence.
The guidelines cover implementation steps that enable filing and disposition even where timing, geography, or access constraints exist.

Core rule: PDEA custody and disposition

The PDEA takes charge and has custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, and instruments/paraphernalia and/or laboratory equipment confiscated, seized, and/or surrendered, for proper disposition.
Custody obligations begin immediately after seizure/confiscation through marking, inventory, and photography procedures and continue through laboratory examination and chain of custody documentation.
Custody and disposition procedures include laboratory testing arrangements, case-filing support requirements, and court-ordered or justified immediate destruction/burning processes.
The guidelines require evidence handling systems that preserve integrity and evidentiary value.

Marking, inventory, and photographs

The apprehending or seizing officer with initial custody must, immediately after seizure and confiscation, mark, inventory, and photograph the items.
Marking, physical inventory, and photography must be conducted where the search warrant is served.
Marking is performed by placing the apprehending officer or poseur-buyer’s initials and signature on the item/s seized.
In warrantless seizures, marking in the presence of the violator must be done immediately at the seizure place or at the nearest police station or nearest office of the apprehending officer/team, whichever is practicable; the physical inventory and photograph must be done at the same nearest location, whichever is practicable.
Where execution of a search warrant is preceded by warrantless seizures, marking/inventory/photographs of items recovered from the search warrant must be performed separately from the marking/inventory/photographs of items seized from warrantless seizures.
Physical inventory and photograph must be done in the presence of the suspect or his/her representative or counsel, an elected public official, and a representative of the National Prosecution Service (NPS) or the media, who must sign the copies of the inventory and must be given a copy; refusal to sign must be stated as “refused to sign” above the relevant names in the inventory certificate.
“Representative of the NPS” means an employee from the NPS; “media representative” means any media practitioner; “elected public official” means any incumbent public official regardless of where he/she is elected.

Chain of custody and sealing controls

To prevent switching or contamination, fungible and indistinct seized items that have been marked must be sealed in a container or evidence bag and signed by the apprehending/seizing officer for submission to the forensic laboratory.
For seizure of plant sources at the plantation site where counting or weighing as a complete entity is not physically possible, the seizing officer must estimate count or gross weight or net weight, whichever applies.
If safe and practicable, marking/inventory/photograph may be performed at the plantation site; representative samples in prescribed quantity under Board Regulation No. 1, Series of 2002, as amended and/or Board Regulation No. 1, Series of 2007, as amended must be taken after seizure for laboratory examination and retained as corpus delicti following chain of custody.
Noncompliance with the requirements of Section 21(1) of Republic Act No. 9165, as amended, under justifiable grounds, must not render void and invalid the seizures and custody, provided integrity and evidentiary value are properly preserved.
Any justification for noncompliance must be clearly stated in the sworn statements/affidavits of apprehending/seizing officers, including the steps taken to preserve integrity and evidentiary value, and must be accompanied by certification/record of coordination for operating units other than PDEA pursuant to Section 86(a) and (b), Article IX of the IRR of Republic Act No. 9165.
The chain of custody must indicate the time and place of marking, names of officers who marked/inventoried/photographed/sealed, who took custody and received evidence from one officer to another, and the time and date of every custody transfer until submitted to laboratory personnel for forensic examination; the laboratory continues the chain as required.

Forensic lab examination and reporting

Within twenty-four (24) hours upon confiscation/seizure, the items must be submitted to PDEA Forensic Laboratory for qualitative and quantitative examination.
PNP and NBI forensic or crime laboratories must conduct qualitative and quantitative examination in support of the PDEA for items submitted by anti-illegal drug operating units/task forces or the apprehending officer/team, consistent with the guidelines’ cross-reference.
Where violations require laboratory examination, the positive result of qualitative examination by the forensic chemist supports the criminal charge(s).
Quantitative examination is done upon request by the apprehending team or upon issuance of a court order when purity determination is required by law.
A certification or chemistry report must be issued immediately upon receipt within the reglementary period that enables filing of criminal charges with the prosecutor’s office.
If volume prevents completion within the time frame to file charges, a partial laboratory examination report is issued provisionally stating quantities still to be examined; a final certification/chemistry report issues immediately after completion.
In provinces without operational scientific drug analysis laboratories, or where travel time to the nearest PNP/NBI/PDEA forensic or crime laboratory takes several hours, a facsimile or any electronic transmission of the certification/chemistry report is sufficient for filing charges, but the original certification/chemistry report must be forwarded and submitted immediately to the prosecutor’s office.
Laboratory chain of custody must document every time a specimen is handled, transferred, or presented in court until disposal, identifying each person in the chain following the laboratory control and chain of custody form.
For seized/confiscated plant sources intended for eradication-site destruction, representative samples must be preserved and field or screening testing performed as far as practicable; release of certification/chemistry report occurs after confirmatory testing.

Filing of complaints and destruction process

Criminal charges must be filed in the prosecutor’s office against arrested violators within the reglementary period provided by law when a criminal case is filed.
If seizure is executed by search warrant and criminal charges are filed, the return must be filed with the court that issued the search warrant, with a request for the court to take custody of seized/confiscated items.
A request to take/retain custody of marked and inventoried items taken under a search warrant must be supported by the following:
- Motion to take/retain custody;
- Certificate of inventory;
- Photograph showing the seized items and witnesses;
- Certification/chemistry report of laboratory examination results;
- Affidavits of apprehending officers/team;
- Accomplished chain of custody form;
- Accomplished authority to operate form;
- Accomplished pre-operation report form;
- Certification/record of coordination under paragraph A.1.10 of the guidelines; and
- If applicable, record/certification of orderly search, plus sworn statements describing circumstances and justification for non-compliance with inventory and photograph and/or presence of prescribed witnesses, and describing steps taken to preserve integrity/evidentiary value.
The same requirements apply to buy-bust operations, except the “authority to operate” item is excluded from that parity list.
In bulk or voluminous seizures, if it is not practical or safe to bring physical items/evidence to the issuing court, the certificate of inventory and photographs—supported by the same documentary exhibits and accompanied by the motion to take or retain custody—are sufficient for return purposes.
After filing criminal charges, the apprehending officer/team or PDEA must file an urgent motion for immediate destruction within seventy-two (72) hours with the Regional Trial Court (RTC) of the city or province where seizure/confiscation/surrender occurred, with prior written conformity of the Provincial or City Prosecutor (or the Prosecutor General or duly authorized representative as indicated in the pleading).
The urgent motion for destruction must be heard and resolved within five (5) days upon receipt.
Upon hearing the motion, the court must conduct an ocular inspection within seventy-two (72) hours, where representative samples are taken, marked, and sealed in the presence of the arrested violator, counsel or representative, laboratory personnel, and prescribed witnesses, to be retained in custody of the PDEA/PNP/NBI forensic laboratory as applicable for evidence in the criminal case.
The taking of representative samples is not prejudiced by the accused/offender being at large during sample taking, and the later trial court takes judicial notice of the proceedings.
If a separate destruction motion was not filed during preliminary investigation, an urgent motion is filed with the court where information is being heard, with prayer for ocular inspection within seventy-two (72) hours; the motion is heard and resolved within five (5) days; representative samples are taken during ocular inspection and retained in the forensic laboratory as evidence before destruction.
Upon receipt of the destruction order, PDEA proceeds with destruction or burning within twenty-four (24) hours, or as far as practicable, in the presence of prescribed witnesses.
If the plantation site is infested by insurgents, inaccessible by motor vehicles and transmission communication signal, or weather/calamity/disaster poses danger to officers/team and witnesses, destruction of plant sources may be immediately undertaken even without the order of destruction.
If the amount of seized/confiscated dangerous drugs, plant sources, or controlled precursors and essential chemicals is equal to or less than the retention amount prescribed by Dangerous Drugs Board regulation, the apprehending officer/team or PDEA preserves seized items as evidence in court until the court terminates the case.

Destruction when no violator case exists

If seizure/confiscation results in no violator apprehended and no criminal case filed:
- If done by search warrant, the same search-warrant custody guidelines for return and documentation apply.
- The order to proceed with immediate destruction must be secured from the Director General of PDEA or his authorized representative in the Regional Office of PDEA.
- Immediate destruction/burning must proceed as scheduled after inventory in the presence of witnesses, forensic laboratory examination, and prescribed reports.
- Immediate destruction of plant sources without prior order proceeds when justifiable grounds in the plantation-site hazard scenario are present.

Destruction methods, witnessing, certifications

The cost of disposition and destruction of dangerous drugs, plant sources at the plantation site, controlled precursors and essential chemicals, instruments/paraphernalia, and/or laboratory equipment is borne by the accused or offender, without prejudice to PDEA’s funding requirements under paragraph E.2.2.
Items of lawful commerce determined by the Board must be donated, used, or recycled for legitimate purposes.
A representative sample of lawfully commercial items and their plant sources, controlled precursors, and essential chemicals must be retained when a criminal case is filed.
Dangerous drugs and controlled precursors and essential chemicals must be disposed of by:
- Thermal destruction in accordance with applicable environmental laws, with PDEA allowed to engage third parties with thermal facilities covered by valid and subsisting permits and clearances; or
- Other lawful appropriate methods authorized by the Board in consultation with DENR.
Marijuana and plant sources of dangerous drugs must be destroyed by burning on the site of eradication activity and in open field, then the burnt marijuana plants must be buried underground.
Destruction/burning must be done in the presence of the accused or the person(s) from whom items were confiscated/seized, or his/her representative or counsel, plus a media representative, DOJ/NPS, civil society groups, and any elected public official.
The Board, through the Director General of PDEA or Regional Director, must issue a sworn certification of destruction/burning, including retained quantity of representative samples and explanation for plant-source destruction without prior order; this certification must be submitted to the court having jurisdiction.
If the court directs submission of representative samples after taking/marking/sealing, the custodian must immediately submit them to court.
Representative samples must be kept to a minimum quantity as prescribed by existing Dangerous Drugs Board regulation.
The absence of an accused/offender at large during destruction/burning does not prejudice the criminal case(s if due notice of destruction was issued to the accused at his/her known address on record.

Offender participation and representation

The alleged offender or his/her representative or counsel must be allowed to personally observe the proceedings; presence does not constitute an admission of guilt.
If the offender/accounted accused refuses or fails to appoint a representative after due notice in writing within seventy-two (72) hours before actual burning or destruction, the Secretary of Justice, the Presiding Judge, or the Chief of Public Attorney’s Office in the place of destruction appoints a Public Attorney’s Office member to represent the accused.
Proceedings under the custody and destruction sequence must be continued even in the absence or objection of the alleged offender or representative/counsel, provided the absence or objection is duly noted in writing.

PDEA lead agency after judgments

PDEA proceeds with destruction of drug evidence/representative samples presented as evidence in criminal cases before the courts when judgment includes a directive to turn over the evidence/samples to PDEA.
The court furnishes a copy of the judgment to PDEA when turn-over is directed.
If the directive to turn over is not included, the trial prosecutor must request court leave to turn over to PDEA or must inform PDEA of the final termination with a copy of the judgment.
After receipt of the judgment or termination information, PDEA must immediately retrieve custody from the custodian officer and take custody for proper destruction within twenty-four (24) hours, or as far as practicable.

Transitory provisions and undertakings

PDEA takes charge in custody, proper disposition, and destruction of all seized/surrendered dangerous drugs, plant sources, controlled precursors and essential chemicals, instruments/paraphernalia/laboratory equipment, and representative samples from law enforcement agencies, forensic laboratories, evidence storage facilities, offices of public prosecutors, and courts if no longer needed as evidence in court.
PDEA must request sufficient amounts or funds in its annual general appropriations from the Department of Budget and Management (DBM) to comply with immediate disposition and destruction/burning.
PDEA must file a motion/petition in court for satisfaction of destruction/disposition cost in a forfeiture proceeding against the property or asset of the offender pursuant to Section 20 of Republic Act No. 9165 and may avail of other remedies or civil actions under applicable laws or Rules of Court.
Satisfaction of destruction/disposition cost must be refunded to PDEA to fund continuing programs for destructing/burning.
While PDEA lacks its own forensic laboratories, evidence storage facilities, and personnel in any area of its jurisdiction required by Section 84(f), Article IX of Republic Act No. 9165, PNP and NBI forensic laboratories continue qualitative and quantitative examinations on seized/confiscated/surrendered evidence; PNP and NBI maintain custody of representative samples for use in court and then turn them over to PDEA for destruction under the transitory custody provision.

Implementation mandate and remedial actions

PDEA must initiate or collaborate to ensure effective implementation, including appropriate legal actions or measures to pursue under the law or applicable rules and regulations in cases where guideline violations result in unsuccessful prosecution or dismissal of drug cases.

Repeal, amendments, separability

Guidelines, circulars, resolutions, regulations, orders, and other issuances implementing Section 21, Republic Act No. 9165 as amended that are inconsistent with these guidelines are repealed, amended, or modified accordingly.
Any amendment or modification to these guidelines must be done in consultation with the DOJ and other relevant sectors pursuant to Section 2 of Republic Act No. 10640.
If any provision or part is declared invalid or unconstitutional, the remaining provisions remain valid and subsisting.