OPINION

This is an appeal from the action of the trial court in denying relief prayed for in a pre-conviction writ of habeas corpus petition.

Petitioner was indicted for delivery of a dangerous drug, namely, phentermine. Bail was set at $10,000.00.

*844In Riddle v. State, Tex.Cr.App., 560 S.W.2d 642 (1977), we held that phenter-mine is a controlled substance but not a dangerous drug. Since there is no penalty for its possession or delivery, no prosecution may be legally sustained for the delivery of it.

The order of the trial court setting bail is set aside and petitioner is ordered released from custody, because of this indictment, without bail.