The government on Wednesday told the division bench of the high court hearing petitions against the manner in which prohibition has been imposed on the state that once the Bihar Excise (Amendment) Act, 2016, comes into force, the question of invoking the earlier law, the Bihar Prohibition Act, 1938, does not arise.

The government's clarification came amidst a point raised by the petitioner's counsel on Tuesday that since the 1938 act has not been repealed, how could the government impose total prohibition by bringing a notification amending the Excise Act, 2015.

Appearing on behalf of the state, Supreme Court lawyer Rajeev Dhavan told the bench of Acting Chief Justice Iqbal Ahmed Ansari and Justice Navaniti Prasad Singh: "These are two parallel legislations. A question has arisen as to which one will prevail. Obviously, after coming into effect, the Bihar Excise (Amendment) Act, 2016 would prevail."

He added: "Both the 1938 act and the new amended excise Act of 2016 operates in different fields. The question as to which act will prevail is thus nugatory (having no purpose or value)... Article 47 of the Constitution, which deals with directive principles of state policy, gives direction that the state should protect the health and nutrition of its citizen and strive to achieve total prohibition. Total prohibition imposed in the state is in conformity with Article 47."

This was countered by the petitioners' counsel Balbir Singh, another apex court advocate, who said total prohibition does not exist in Bihar as one category of liquor, toddy, is exempt from the ban.

On the issue of liquor manufacturing for export purposes, Dhavan said: "You (manufacturers) are entitled by the policy to do so. Any liquor manufactured since April 1, when partial prohibition was imposed, before total prohibition was imposed on April 5, you export."

He said the manufacturers themselves say there is no problem in re-labelling the liquor bottles.

Replying on the petitioners' plea that licences were given to open liquor shops till April 4, a day before prohibition was imposed, Dhavan said: "Was any promise given by the state that their licences will continue?"

On the issue of delegation of powers by the legislature to the executive, he replied: "Notification can be issued imposing prohibition if it is in public interest."

Dhavan concluded his argument by saying: "Your lordship. Now the choice is yours. Either you protect the market or the people. The prohibition is not just from addiction but getting into the habit of addiction."

He also told both the judges: "I don't know how much experience you have of seeing the evils of alcohol."

The case will again come up for hearing on Thursday.