(concurring in part, dissenting in part). This writer concurs with the majority that it was error for the trial judge to submit the entrapment issue to the jury and also agrees that the best remedy for correction of this error is remand to the trial court for an evidentiary hearing to give defendant a chance to prove entrapment. (Part II of majority opinion.) People v Keefe, 69 Mich App 431; 245 NW2d 78 (1976). However, this writer respectfully cannot agree with the majority opinion as to Part I and can see no reason to remand for an evidentiary hearing to give defendant another opportunity to present *30evidence that the drug he sold herein was excepted from the Controlled Substances Act.
The majority opinion’s statement in Part I is quite correct:
"[0]nce the people show a prima facie violation of the Controlled Substances Act, MCLA 335.356(1); MSA 18.1070(56)(1), then operates to impose on defendant 'the burden of going forward, i.e., of injecting some competent evidence of the exempt status,’ of the drug. Dempster, supra. ”
However, defendant failed at trial to inject any competent evidence of the possible exempt status of the drug he sold herein. MCLA 335.356(1); MSA 18.1070(56)(1) is constitutionally valid and does not shift the burden of proving innocence. Our Supreme Court has upheld statutory provisions requiring the defendant to present some evidence in order to put a question at issue. People v Rios, 386 Mich 172; 191 NW2d 297 (1971), People v Henderson, 391 Mich 612; 218 NW2d 2 (1974), People v Dempster, 396 Mich 700; 242 NW2d 381 (1976). The majority, however, would remand for a hearing in order to give defendant another opportunity to produce some competent evidence that this drug may be excepted. This is done on the basis that Administrative Code 1973, A ACS 338.3129, provides an exception if a defendant claiming the exception can show that a Federal exception exists and that the compound in question can be obtained solely by prescription. Majority opinion, p 30. However, at trial, and even on appeal, defendant has failed to allege any facts which would justify such an exception herein. Neither party recognized this rule in argument or in their briefs. It was not argued at trial and its application herein is extremely doubtful. MCLA 335.356(1); *31MSA 18.1070(56X1), provides that a defendant must allege some facts to show an exception or exemption from the Controlled Substances Act. Defendant failed to do this at trial, and, in fact, has failed still to allege any such facts on appeal.
Defendant does maintain on this appeal that although there was testimony showing that the tablets sold by defendant contained PCP, the prosecution must still present a quantitative analysis. Neither statute nor administrative rule requires such a quantitative analysis for this drug. Defendant has failed to allege that any statutory or administrative rule exempts any compound containing PCP from scheduled coverage under the Controlled Substances Act, MCLA 335.318(l)(b); MSA 18.1070(18)(l)(b), although the statute expressly authorizes the administrator to do so by administrative rule if the administrator finds:
"[T]he compound, mixture or preparation contains 1 or more active medicinal ingredients not having a stimulant or depressant effect on the central nervous system, and if the admixtures are included therein in combinations, quantity, proportion or concentration that vitiate the potential for abuse of the substances which have a stimulant or depressant effect on the central nervous system.” MCLA 335.318(2); MSA 18.1070(18X2).
Defendant has failed to assert any facts which would bring him within this or any other exception to the scheduled coverage of the Controlled Substances Act. No one has shown any rule whereby the Legislature, administrator or anyone else has found any PCP compound to be exempt from scheduled coverage. There was no reason to undertake a quantitative analysis of the drug sold once it was qualitatively shown to contain PCP, a *32drug which has no known exceptions to coverage under the Controlled Substances Act.
The majority indicates that remand is justified because the lower court mistakenly forestalled whatever effort defendant might have made to show an applicable exception. This is just not so. The record indicates that the trial court properly found no reason to examine quantitatively the drug sold by defendant herein.
"Now, as I understand there must be, one, an exception of the administrator and two, if there is an exception to the administrator there is a problem of what the chemical consistency [sic] of the particular controlled substance and surrounding materials might be.
"In this instance before ruling on this matter I indicated to Counsel in Chambers that in the absence of any promulgatéd rules establishing exceptions for a compound containing PCP that I would take the position that delivery of any PCP as that of a controlled substance had no exception to it.
"The basis of the ruling is on the fact that we do have the Michigan Administrative Code and we have procedures inacted [sic], all of which establish strictly the manner in which the administrator may promulgate rules.
"Notice, of course, is an important factor and we have examined this morning the Michigan Administrative Code from the date of its promulgation of the act to the present time and I find no exception for any compound whatsoever notwithstanding the compound containing PCP.” (Emphasis supplied.)
The court did indicate to counsel that if he showed any exception for a PCP compound then the court would be inclined to force the prosecution to present evidence of a quantitative analysis of the subject drug.
"I indicated to Counsel and I just say this at this *33point in time that I likely would require chemical analysis of the materials to see what medicinal ingredients, if any were contained within the PCP to determine whether that substance falls within the exception.
"I recognize the act technically shifts the burden to the Defendant to prove the exceptions but I might be inclined with Counsel that chemical analysis at this point would be something that might place an undue burden on the Defendant and I would likely order upon request chemical analysis for those purposes.
"In short, I might place the burden on the People with regard to that but here we don’t even get to that because there’s no showing before the court and I hold that it is strictly a matter of law that there is no showing that the administrative promulgated rules contained within the Michigan Code indicate that any PCP compound has been excepted so therefore the motion is denied.”
The court thoroughly and properly considered the law and facts in denying defendant’s motion for a directed verdict based on the prosecution’s failure to prove more than a qualitative analysis of the drug sold herein. There was ample testimony that this drug sold by defendant was PCP. There was no showing that any PCP compound is excepted from coverage under the Controlled Substances Act. The trial court was correct in denying defendant’s motion and should be affirmed in this regard.
This writer votes to concur as to Part II of the majority opinion, but votes to affirm the trial court as to Part I as contained in the majority opinion.