dissenting:
As the opinion of the majority acknowledges, section 404 of the Controlled Substances Act (Ill. Rev. Stat. 1977, ch. 56%, par. 1404) permits a person who delivers a harmless, noncontrolled substance to be punished more severely than another person who actually delivers a substance which is controlled. Because all persons convicted of violating section 404 are subject to the same possible penalties, and thus those similarly situated are treated similarly, the statute is unobjectionable on equal-protection grounds. Nevertheless, as recognized by the supreme court in People v. Bradley (1980), 79 Ill. 2d 410, 403 N.E.2d 1029, due process is offended by a statute which authorizes the imposition of penalties not reasonably designed to remedy the evil which the statute seeks to prohibit. In my opinion, section 404 is such a statute.
In People v. Calcaterra (1965), 33 Ill. 2d 541, 213 N.E.2d 270, cert. denied (1966), 385 U.S. 7, 17 L. Ed. 2d 8, 87 S. Ct. 65, the defendant was sentenced to three to 10 years in prison upon, his conviction of selling a bag of milkweed under the representation that it was marijuana. On appeal, he contended that a law making it a criminal offense to sell a nonnarcotic substance was in no way related to the public health, safety, welfare, or morals, and was therefore an invalid exercise of the police power. In upholding the constitutionality of the statute, the court stated:
“The legislature might reasonably have assumed that when an individual purports to unlawfully furnish or arrange the sale of narcotic drugs he is participating in the illicit trade whether or not the substance he sells or furnishes is in fact a narcotic. By holding himself out as a source of supply he is encouraging the purchaser to continue his unlawful habit and, in selling a non-narcotic substance, the peddler is realizing funds which in many instances will be used to further actual narcotics traffic. Furthermore, * 0 many vendors of narcotics upon initial contact will, in order to avoid selling to a police officer or informer, actually test the buyer by first selling him a non-narcotic substance. The section here enables enforcement officers to effectively meet this phase of the illegal drug traffic, and to prevent its development into actual sales of drugs. We conclude that the purpose of the section is to discourage illicit traffic in narcotics and is reasonably related to the public safety and welfare.” 33 Ill. 2d 541, 545, 213 N.E.2d 270, 272-73.
This case, however, is different from Calcaterra.2 No contention is made here that the General Assembly may not declare it a criminal offense to sell a noncontrolled substance which is represented to be a controlled substance. Rather, the narrower question presented is whether due process is violated when such an offense carries a potential penalty more severe than that which may be imposed for actual delivery of a controlled substance. Is such a penalty provision, in other words, reasonably designed to remedy the evil sought to be prohibited by the legislature? Unlike the majority, I am unable to conclude that it is.
According to Bradley, the purposes and objectives of the statute must be considered in determining whether it is so reasonably designed. One declared purpose of the Controlled Substances Act is to “acknowledge the functional and consequential differences between the various types of controlled substances and provide for correspondingly different degrees of control over each of the various types * * * .” (Ill. Rev. Stat. 1977, ch. 56M, par. 1100(4).) Granted that section 404 is aimed generally at the societal harm flowing from the illicit traffic in controlled substances, it can hardly be denied that there are, a fortiori, “functional and consequential differences” between controlled substances and noncontrolled ones. I am not willing to concede that the legislature might reasonably have assumed that a person who sells a truckload of Valium should be potentially subject to a less severe sentence than a person who gives a caffeine tablet to someone and deceitfully tells him that it is an amphetamine.
Though the legislature’s discretion in prescribing penalties for defined offenses is broad, it is not unreviewable. It remains subject not only to the due process clause (see, e.g., People v. Bradley and cases cited therein), but to section 11 of article I of the Illinois Constitution, requiring that penalties be determined according to the seriousness of offenses. (See, e.g., People v. Grant (1978), 71 Ill. 2d 551, 377 N.E.2d 4.) Because in my view section 404 violates both of these constitutional provisions, I would reverse the defendant’s conviction, and therefore respectfully dissent.
Calcaterra’s conduct would not be a criminal offense in Illinois today. The statute under which he was convicted (Ill. Rev. Stat. 1961, ch. 38, par. 22 — 40) has been repealed, and no parallel to section 404 appears in the Cannabis Control Act (Ill. Rev. Stat. 1977, ch. 5®á, par. 701 et seq.).