(concurring). I would uphold the conviction on the narrow ground that the indictment, as recognized by the majority, follows the exact wording of G. L. c. 94C, § 32A(c). See note 4 and accompanying text, supra. It charges that the defendant “did knowingly or intentionally manufacture, distribute, dispense or possess with intent to manufacture, distribute or dispense a controlled substance defined in clause (4) of paragraph (a) of Class B of section thirty-one, to wit: Cocaine.” Since the indictment stated the violation in the language of subsection 32A(c), the defendant was given notice under which subsection of the statute the indictment was framed. That the indictment did not specifically refer to the subsection by name did not create any doubt as to which subsection was violated. See Commonwealth v. Jiminez, 22 Mass. 286, 295-296 (1986). Cf. Commonwealth v. Bradley, 35 Mass. App. Ct. 525, 527 & 528 n.5 (1993).
The reason I concur specially is that the much broader analysis of the majority opinion, in my view, is not consistent with the interpretation given to the two subsections of G. L. c. 94C, § 32A, in Cedeno v. Commonwealth, 404 Mass. 190 (1989). The majority of the panel upholds the defendant’s conviction under § 32A(c) “because the indictment identified the Class B. Substance as cocaine.” In the majority’s view, the mere listing of the drug as cocaine (or another drug defined in clause [4] of par. [a] of class B) is sufficient to indicate that the indictment is under § 32A(c).
In Cedeno v. Commonwealth, the Supreme Judicial Court explicitly stated with reference to §§ 32A(a) and 32A(c): “The Legislature has enacted two statutory provisions making the possession of cocaine with intent to distribute it unlawful. The two provisions set forth somewhat inconsistent *370potential penalties for conviction of that crime.” 404 Mass. at 190.
The foregoing quotation was not an off-hand comment, but was central to the opinion. The challenge by the defendant in Cedeno was that the statute was void for vagueness because two provisions with two different penalties proscribed the same conduct. As a result, he claimed he could not be convicted under either section. In rejecting that argument, as applied to the defendant who was convicted under § 32A(a), the court reiterated the applicability of both subsections saying, “Section 32A(c) proscribes certain conduct which also falls within the conduct proscribed by § 32A(a) .... No one can be confused about what the Legislature intended. If a person possesses cocaine with the intent to distribute it, that conduct is criminal. That point is clear. The Legislature has said it twice in § 3 2A.” (Emphasis supplied.) Id. at 196. See also id. at 191 n.l.
In view of the interpretation by the Supreme Judicial Court that both subsections proscribe possession of cocaine with the intent to distribute, I think it behooves a prosecutor who wishes to charge a defendant under § 32A(c) to give the defendant notice that the proceeding is under that subsection by either referring to the subsection in the indictment or, as in this case, by charging the defendant in substantially the language of the subsection. “The principle that no one may be required at his peril to speculate as to the meaning of a criminal statute applies to sentencing as well as to substantive provisions.” Commonwealth v. John G. Grant & Sons, 403 Mass. 151, 155 (1988). Commonwealth v. Cedeno, 404 Mass. at 193. See United States v. Batchelder, 442 U.S. 114, 123 (1979). I cannot accept the majority’s conclusion that “[bjecause this indictment charged the defendant with possession with intent to distribute, not just a Class B controlled substance, but rather cocaine specifically, it put the defendant on notice that he was exposed to the more stringent penalties of subsection (c).”
Accordingly, I would affirm the defendant’s conviction on the more narrow basis.